The opinion
On Rehearing.
LECHE, J.
The pleadings and facts in this case are fully stated in our original opinion, and in this rehearing we are called upon to review the correctness of the legal conclusions heretofore reached by us. We held originally that plaintiffs’ petition did not. set forth a cause of action against Aschaffenburg for having failed either to allege that they had put Aschaffenburg in default, or to allege facts which would have dispensed them with the necessity of such putting in default. That conclusion, we are still of the opinion, was manifestly correct. But we further decided that Aschaffenburg was not a necessary party to this suit, and proceeded to render judgment upon that theory. That was the announcement of another legal conclusion in which we now believe that we committed error.
Plaintiffs in their petition, under paragraph 7, expressly allege that Willard & Eiseman *527 refuse to turn over to them the deposit of $4,200, notwithstanding amicable demand by-petitioners, and in the prayer of their petition ask for service on Aschaffenburg as well as upon Willard & Eiseman.
The alleged reasons for which Willard & Eiseman refused to comply with plaintiffs’ demand was the fear of being also held responsible by Aschaffenburg, and thus have to pay a second time, and out of their own pocket. So that it is evident that both plaintiffs and defendants Willard & Eiseman considered that Aschaffenburg should have his day in court that he might urge any claim on his part to the deposit, and the object of plaintiffs’ suit wms then not only to recover the $4,200, but also to obtain contradictorily with Aschaffenburg, in order that the latter might thereafter be bound by the judgment, a decree which would recognize their ownership of the fund and at the same time protect Willard & Eiseman.
Whether the sum of money deposited by Aschaffenburg with Willard & Eiseman be considered as part of the purchase price in an executory contract of sale, or as earnest money, plaintiffs, in order to recover and to be adjudged owners thereof, must of necessity either compel Aschaffenburg to perform the contract or have the deposit declared forfeited, and, in either event, Aschaffenburg is a necessary party to such a judgment.
[5] Again, Willard & Eiseman have acted in this transaction as real estate brokers, and therefore as agents of both parties; for, according to article 3016, Civil Code, a broker is considered the mandatary of both parties. We held in the case of Woods, Slayback & Co. v. Rocchi, 32 La. Ann. 210 , that a broker is the agent of the original employer and becomes agent of the other party, when the bargain is definitely settled. Willard & Eiseman were therefore the agents of plaintiffs, the original employers, when they undertook to sell the property and later also became the agents of Aschaffenburg when the latter agreed to purchase the property. It was further held by this court in Louisiana Board of Trustees, etc., v. Dupuy, 31 La. Ann. 305 , that where a person is the common agent of others, and is called upon to account, there should be but one proceeding, to which all those in interest should be made parties, and their rights determined in concurso. It follows that in a suit against the agents, Willard & Eiseman, for an accounting, by plaintiffs one of the principals, Aschaffenburg, the other principal, is a necessary party.
The general rule is that any one having an actual interest in a controversy presented to a court for its determination should be made a party to the suit. Where, however, a suit incidentally involves the rights of a person who is not a partjr, the court may proceed to decide those questions which only concern the litigants and in which that person has no interest. But this cannot be done in the present suit, because the sole issue, the ownership of the deposit of $4,200, is one in which Aschaffenburg admittedly has an interest, and does not solely concern plaintiffs and Willard & Eiseman.
All of the parties by their pleadings and arguments wish to obtain a decree which will finally settle their rights to the deposit in the hands of Willard & Eiseman, and believing that Aschaffenburg was not properly impleaded, and that he is a necessary party in order to attain that end:
It is ordered that plaintiffs’ suit be dismissed as of nonsuit at their costs in both courts.