Appeal from the Circuit Court for Montgomery County; Shook, J.
Hammond, Prescott, Horney, Marbury, and Sybert, JJ. Prescott, J., delivered the opinion of the Court.
The plaintiff below has appealed from an order entered by the Circuit Court for Montgomery County, sitting as a Court of Equity, in a special case by consent.
The petition requested the trial judge to determine two questions:
(1) Is all, or any portion of the $5,850 now held by defendant Montgomery Title Company for the estate of Leo A. Bryer, held in trust for plaintiff by virtue of a written agreement dated October 1, 1956, between plaintiff and Leo A. Bryer?; (2) If the answer to the preceding question is in the affirmative, is such trust property the sole property of plaintiff, and not subject to claims of third parties against the trustee, Leo A. Bryer, or his legal representative?
The agreement between Bryer and the plaintiff, mentioned in question 1 above, contained the following paragraph:
"5. * * * In no case shall the Broker be personally liable to the Salesman for any commission, nor shall said Salesman be personally liable to said Broker for any commissions, but when the commission shall have been collected from the party or parties for whom the service was performed, said Broker, in the event such commissions are paid to him, shall hold the same in trust for said Salesman and himself to be divided according to the terms of this agreement, * * *."
The parties then stipulated:
"(1) Of the $5,850.00 held for Leo A. Bryer by Montgomery Title Company, $4,950 represents sales commissions on homes sold in 1959 by Grace Wills Klein while acting as a salesman for Leo A. Bryer, pursuant to an employment agreement filed as Exhibit I herein.
"(2) According to the terms of said agreement,
Grace Wills Klein's commissions on the aforementioned sales amount to 50% of $4,950, or $2,475, and were never received by her."
This was followed by an agreement of the parties that, if questions 1 and 2, above, were answered in the affirmative, the court should enforce the trust and order the Title Company to pay the plaintiff the amount due her, and direct that any funds remaining in the hands of the Title Company be paid to the representative of the estate of Leo A. Bryer; but in the event that the answers were in ...