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amourt then presently due. The unilateral stipulation contained in the writing, to the effect that the purchaser would lay the land out into lots, specifying no time, and pay the amount with interest, out of the proceeds of sales, in money or promissory notes, was, if of any force whatever, at the most an agreement on his part that he would do so within a reasonable time.

It is insisted that because the Austin judgment which belonged to Mrs. Rochester was used by her agent to pay for the street improvements, and because the amount of the purchase price of the land, and the accrued interest thereon, were liquidated by being included in a partial settlement made in 1874, which was afterwards found to be erroneous, an imputation of bad faith in making the purchase of the land arises. These were all matters occurring long after the transaction which is assailed was completed, and cannot be supposed to have been contemplated. They did not exist at the time the land sale was made, and could, consequently, have exerted no influence upon it, one way or the other. They were matters only relevant to be considered in the adjustment of the accounts between the parties, and in that connection they were considered by the learned court, and properly adjusted. The sale of the land cannot be affected by independent dealings or transactions which were bad afterwards, and which had no relation to the principal transaction here involved. Sherman v. Hogland, 54 Ind. 578.

Having thus arrived at the conclusion that upon the facts found, the purchase of the land was not in itself impeachable, we need not consider the proposition advanced, and much debated in the briefs, that the plaintiff's proceeding to set it aside has been so long deferred as to bring it within the rule applicable to stale claims.

It was found by the court that during the continuance of Mr. Levering's agency and management of Mrs. Rochester's affairs he attended to procuring insurance against loss by fire upon her property. He was at the same time the agent of the Ætna Fire Insurance Company, and from year to year, or as insurance was deemed necessary, policies of insurance were written by him upon her property, and the amount of premiums thus accruing were charged against her in his account. Several hundred dollars was in this manner charged against her, and in taking the account the learned judge, at nisi prius, allowed for the items thus charged. It is now insisted that, because the agent of the insurance company was also the agent of Mrs. Rochester, the policies issued by him as agent to cover her property against loss were void; that they afforded no protection, and that the account for premiums paid should have been disallowed. New York, etc., Co. v. National, etc., Co., 14 N. Y. 85.

It is found by the court that while it was known to the insurance company that Mr. Levering was the agent of Mrs. Rochester in effecting the in

surance, it was stated in his reports made to the company that the property insured was controlled in his office. Insurance so effected would at the most be only voidable, depending upon the relation of the agent of the company to the property, the interest and authority which he had in respect of its management, and the knowledge possessed by the company of such relation and authority. That the insurance company was informed that the property insured was controlled by its agent, or in his office, was presumptively sufficient to indicate to it that the matter of securing indemnity by way of insurance was also under his control. The policies having been permitted to stand with this information, we have no doubt they would have been enforceable against the company. At all events, as the policies were at the utmost only voidable upon the return of the premium paid, we cannot presume that they would have been avoided in case of loss, and by indulging such presumption deny the appellee's right to be reimbursed for the premiums paid.

The next question presented for consideration relates to the right of the appellee to receive compensation for services while conducting the business of Mrs. Rochester. It is found by the court that during the continuance of the agency various items, amounting in the aggregate to about $3,000, were changed in the account against Mrs. Rochester for service in attendidg to her business. Concerning these charges, the court made the following specific finding:

“That all of said charges for services are reasonable, and that it was fully worth, substantially, more than the amounts so charged by said agents, and by said plaintiff as such agent, to do the work done by them as such agents, or by said plaintiff as such sole agent."

The account for services was allowed by the court below. Fully recognizing the rule that where an agent has violated his trust, or has been guilty of fraud or gross neglect of duty, thereby imposing upon his principal the necessity of expensive litigation in order to secure his rights, the penalty for such fraudulent conduct or willful violation of duty is the forfeiture of all compensation. Yet this rule should never be applied to mere mistakes in the keeping of an account, or errors of judgment, or other omissions which do not amount to misconduct or gross and culpable neglect or disregard of duty. We are unable to discover anything in the facts of this case which demands the application of the rigorous rule contended for.

The only other objection made to the conclusions reached by the nisi prius court is in respect of the rate of interest allowed. It is contended that in stating the account interest at the rate of 10 per cent. instead of 6 should have been charged against the agent for all sums found to have remained in his hands. The findings state that appellee had possession of all appellant's moneys, securities, and books of account, with authority to invest,

reinvest, and collect her moneys, and that she relied upon him to loan and collect the same; that during the agency of appellee,appellant's moneys, as received by him, were mixed with his own moneys, and used in his business; that from the first of July, 1868, to the first of July, 1878, the current rate at which money was loaned, secured by first mortgage on real estate in Tippecanoe county, was 10 per cent. per annum, interest payable yearly, the borrower to pay all expenses of making the loan, so as to net to the owner of the money 10 per cent. per annum. While the manner of mixing and using the moneys belonging to his principal is not to be commended, it is nevertheless inferable from the accounts exhibited in the record, and the general character of the dealings between the parties as shown by the special findings, that for all the current expenses of herself and family, and for all expenses incurred in maintaining her property, Mrs. Rochester relied upon her agent to respond with money, as the occasion might require. This necessarily involves the keeping of the money, either of his own or his principal's, always available. It may be inferred that the character of the business relation between Mrs. Rochester and her agent was such that it imposed upon the agent the entire responsibility of looking after her business, to such an extent that her entire time and thought could be and were devoted to rearing and educating her children, without further concern than to call or make drafts upon her agents as money was needed. Considering that her fortune was such as to involve the handling of the amount exhibited in the account stated, it may well be that the necessity for considerable sums was frequent. The amount on hand uninvested at any one time does not seem to have been large compared with the affairs under control. That investments were not more closely made, cannot, under the circumstances, be imputed to such neglect as should charge the agent with the highest obtainable rate of interest. Indeed, if any error at all was committed by the court below, it was in applying too rigorous a rule against the agent by charging him with compound interest on all sums found to be in his hands, as hereinafter stated.

We have thus disposed of all the errors assigned by the appellant. As there was a judgment against the appellee below, and inasmuch as he excepted to some of the conclusions of law stated, it is proper we should consider the cross-errors signed by him in this court, notwithstanding the conclusion so far reached on the errors assigned by the appellant has resulted in discovering no error. Kammerling v. Armington, 58 Ind. 384. The case is not analogous to nor controlled by Thomas v. Simmons, 1 Wkly. Rep. 557.

It was found that in the course of his agency the appellee loaned $482.80 of the funds of his principal to one McBride, who was at the time in debt, but able to pay; that the money so loaned might have been collected if proper steps had been taken

to that end, but that the appellee took no steps to collect it, and the amount was lost. This sum was charged by the court below against the appellee, and this is one of the grounds of complaint made by a cross-error assigned. The facts found, justify the conclusion reached in that regard. It is apparent that the appellee had permitted himself to become so far involved in the affairs of McBride, who was known by him to have come into such financial stress, that he could not with propriety neglect the debt due from him to his principal. We think, while he was not guilty of willful default he was chargeable with such supine negligence as made him properly liable. He was under an obligation, at least, to use the same diligence in behalf of his principal that he used in respect of his own affairs. This, it is shown, he did not do.

The next cross-error assigned relates to the action of the court in charging the appellee with the amount of the Austin judgment, which was used by the appellee in paying for street improvements. Without rehearsing the facts, we think he has no just ground of complaint in that regard.

It is next complained of that the court erred in its sixth conclusion of law, the force of which set aside the transfer of certain lots conveyed by McBride to the appellee, and subsequently conveyed by him to Mrs. Rochester, in liquidation of a debt due from McBride to her, the payment of which the appellee had assumed. The appellee had become so complicated with the affairs of McBride that he found it expedient to accept the conveyance of a number of lots, and to assume the payment of a loan of money belonging to Mrs. Rochester, which he as agent had made to MCBride, and which was secured by mortgage on the lots transferred by McBride to the appellee. This debt so assumed and secured, the agent subse quently discharged by transferring some of the lots conveyed by McBride to him to Mrs.Rochester,the transfer of which was accepted in payment of the debt assumed under his advice. They were found to be of much less value than the amount of the debt. Without further rehearsing the facts, it is sufficient to state that, within the rules already referred to, governing dealings between principal and agent, we think the conclusion reached by the court was right.

The fourth cross-error assigned, which relates to the seventh conclusion of law, is not insisted upon in the argument, and is therefore waived.

The next cross-error assigned relates to the method adopted by the court in stating the account and charging interest on balances found to be in the appellee's hands. The method adopted was to consolidate all the accounts, take the difference between the receipts and disbursements for the first current year as the first principal, upon which interest was computed for one year at 6 per cent., and this interest was carried into the account of the second year. At the end of the second year the account was to be balanced, and

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agents 4 but also to trusteess and executors,6 administrators, one of several administrators,8 guardians, attorneys, 10 stewards, 11 partners,12 insurance agents,1s brokers, 14 commission merchants,15 assignees, 16 sheriffs, 17 deputy sheriffs, 18 judges of probate at sales ordered by themselves,19 superintendents of public instruction authorized to sell school lands,20 commissioners in bankruptcy,21 county treasures at sales of lands for delinquent taxes, 2 cashiers,23 broker's clerks,24 attorneys' clerks,25 presidents of insurance companies, 26 officers of railroads,27 masters of ships, a minority of a board of directors, 29 an attorney for a

interest computed on the balance, and carried into the account for the third year, and so on down through each year to the end of the current year in wbich the plaintiff ceased to be agent. From thence, down to the date of the taking the final account, interest was computed with annual rests at 6 per cent. Upon the facts as they appear, and in the absence of the evidence, there is nothing before us wbich authorizes us to say this was wrong. Without a further rehearsal of the facts this much may be said: While the method adopted by the court in stating the account may have resulted in some apparent hardship to the appellee, the impression comes irresistibly from the whole record that he allowed his accounts to come into such a state of confusion and irregularity as must preclude any ground of complaint on his part, even though the court in unravelling the tangled skein felt obliged to cast some doubts in respect of interest in favor of his adversary.

Under section 557, Rev. St. 1881, it was right that the judgment should have been rendered without relief from valuation or appraisement laws. We do not forget that some of the items which went into the account were for property purchased, but the whole was properly treated as money paid into the agent's hands for the property, as it should have been paid for at the time the property was purchased, and as it should have gone into the account if the account had been properly kept. . It was in the consideration of the court a trust fund, treated as though it was actually received at the time and in the manner it should have been received.

There was no such ambiguity or inconsistency in the special finding of facts as made the granting of a venire de novo proper, nor can we say, in the absence of the evidence, that the motion for a new trial was not properly overruled.

Upon the fullest examination of the whole record, and a careful consideration of all the points made on both sides, we are persuaded that justice was substantially accomplished, and that it would be impossible to arrive at a better result than that already reached.

As we find no error, the judgment is affirmed, at the appellant's costs.

4 Reed v. Warner, 5 Paige, 656; N. Y. Cent. Ins. Co. v. Nat. Prot. Ins. Co., 14 N. Y. 85; Grumley v. Webb, 44 Mo., 444.

5 Green v. Winter, 1 John. Ch. 26; Davone v. Fanning, 2 John. Ch. 257; when the property was sold at auction to a third party for the benefit of the wife of the trustee; Oliver v. Court, 8 Price, 170; Whichcote v. Law rence, 3 Ves. 740.

6 Rogers v. Rogers, 1 Hopk. 524; where the executor purchased at a sheriff's sale. Schenck v. Dart, 22 N. Y. 420; Beeson v. Beeson. 9 Burr, 279; Winter v. Geroe, 5 N. J. Eq. 319; Bailey v. Robinson, 1 Gratt. Va. 4; Hudson v. Hudson, 5 Munf. Va. 180; Bruch v. Lautz, 2 Rawle, 392; Dunlap v. Mitchell, 10 Ohio, 117; Williams v. Marshall, 4 Gill & J. 376; Terwilliger v. Brown, 14 N. Y. 240.

7 Beaubien v. Poupard, Har. Ch 206; where the brother in law purchased at the administrator's sale. Hoffman v. Harrington, 28 Mich. 106; Sheldon v. Rice, 30 Mieh. 301; Dwight v. Blackmar, 2 Mich. 330; Obert v. Hummel, 3 Harr. N. J. 74; Coat v. Coat, 63 III. 73; Kruse v. Stephens, 47 Hl. 112; where auctioneer bought in his own name for the administrator. Forbes v. Halsey, 26 N. Y. 53; where administrator bought through an agent. Woodruff v. Cook, 2 Edw. Ch, 259; Green v. Sargent, 23 Vt. 466; Drysdale's Appeal, 14 Pa. St. 531; Smith v. Drako 23 N. J. Eq., 302; in this case suit was commenced seventeen years after the eldest son came of age.

8 Ward v. Smith, 3 Sand. Ch. 592.

9 Bostwick v. Atkins, 3 Comst. N. Y., 53; Walker v. Walker, 101 Mass. 169; Wyman v. Hooper, 2 Gray, 141.

10 Condit v. Blackwell, 7 C. E. Green, 481; Hesse v. Bri. ant, 6 DeG, M. & G. 623; Cane v. Allen, 2 Dow.294; Harris v. Tremenheere, 15 Ves. 34; Greenwood v. Spring, 54 Barb. 375.

11 Selsey v. Rhoades, 2 Sim. & Stew. 49; in this case the bill was dismissed. Lord Hardwicke v. Vernon, 4 Ves. 411.

12 Dunne v. English, L. R. 18 Eq. 524; Dunlap v. Richards, 2 E. D. Smith, 181; Maddeford v. Anstwick, 1 Sim. Ch. 89.

13 N. Y. Central Ins. Co. v. Nat. Prot. Ins. Co. 14 N. Y. 85; Utica Ins. Co. v. Toledo Ins. Co. 17 Barb. 134.

14 Rothschild v. Brookman, 5 Bligh, N. S. 165. 15 Beal v. McKlernan, 6 La. 407.

16 Ex parte Lacey, 6 Ves. 625. In this instance another sale was directed; the premises to be put up at the price he gave; and, if no more bid, his purchase to stand. He bought them in at a lower price. Quaere, how is the assignee to be charged as to that difference?

17 Lazarus v. Bryson, 3 Bin. 54.
18 Perkins v. Thompson, 3 N. H. 144:
19 Walton v. Torrey, Har, Ch. 259.
20 Ingerson v. Starkweather, Walk. Ch. 346.
21 Ex parte Bennett, 10 Ves. 384.

22 Clute v. Barron, 2 Mich. 192; Pierce v. Baughman, 14 Pick. 346.

23 Torrey v. Bank of Orleans, 9 Paige, 663.
24 Gardner v. Ogden, 22 N. Y. 327.
25 Hobday v. Peters, 28 Beav. 349.
26 Fisher v. Budlong, 10 R. I. 527.

27 Aberdeen R. R. Co. v. Blaskie, 1 McQueen, 461; Flint & P. M. R. R. v. Dewey, 14 Mich. 477; Wardell v. U. P. R. R. Co. 5 Cent. Law Jour. 527.

28 Church v. Marine Ins. Co. 1 Magon, 341, where the master sold the ship at public auction. Barker v. Marine Ins. Co. 2 Mason, 369; Copeland v. Mercantile Ins. Co. 6 Pick. 198.

29 People v. Township Board of Overyssel, 11 Mich. 922.

NOTE.-An Agent Employed to sell Cannot sell to Himself, and an Agent Employed to buy Cannot Purchase of himself.-A sale is a contract 1 and a contract is an agreement between two or more parties for the doing or not doing of some particular thing.2 From the very nature of the thing an agreement and concurrence of the minds of the parties,or a consent and harmony of their intentions is essential to the validity of every contract. Hence one mind cannot make a contract. The rule above laid down applies not only to

i Benjamin on Sales, 1. 2 Parsons on Contracts, Vol. 1, p. 6. 3 Lloyd v. Colston, 5 Bush. 590.

majority of the creditors,30 directors,31 auctioneers,82 superintendents,& corporations,34 assignees.85 In fact the rule extends to all persons in whom a special trust and confidence has been reposed.36 In an Ohio case the court say "there was in effect, a sale by a trustee to himself, or to his own use and benefit. This, equity will never permit, not even where there is good falth and an adequate consideration.” “Nothing is better settled in equity, than that such a transaction, on the part of a trustee, does not bind the cestui que trust.37

A Trustee Dealing witd a Cestui Que Trust is Bound to use the Utmost Good Faith and to Make a full Disclosure.-Each man must know the circumstances under which he is dealing. If one of the parties is in a situation which is not fairly disclosed to the other, which if the other bad known, he would not bave relied on his judgement or advice, nor have acted upon or adopted any act of his, such a transaction ought not to be allowed. An. equality of condition is a circumstance that is abolutely essential to any bargain. If an attornoy or agent can show he is entitled to purchase property, yet if instead of openly purchasing it, he purchases it in the name of a third person without disclosing the fact, such purchase is void.39 A general land-agent is bound if he purchase any of the estates of which he is agent to communicate to his principal all his knowledge of the real value of the estate, and to give the same advice as if the sale had been to a third party.40

A Settlement, When the Principal is Ignorant of his Rights, will be set Aside.-A concealment of a material fact is sufficient to avoid a release obtained by a party wbose duty it was to disclose.4l An adjustment is not binding on an underwriter, although at the time of signing it he had the means of rendering himself acquainted with the history of the voyage and the manner of the loss, if his attention was not drawn to circumstances he afterwards learns, by which the underwriters were discharged.42 The agreement of a partner, who superintends exclusively the accounts of the concern and who keeps his co-partner in ignorance, to purchase bis co-partner's share for an inadequate consideration, will be set aside.43 A confirmation to be available must be by a person acquainted with his rights, and knowing that the transaction was impeachable.14

Any Undue Concealment or Non-Disclosure of Facts Which an Agent is under a Moral Obligation to Disclose is a Fraud on the Principal.-In a Rhode Island case, where the president of an insurance company, who professed a desire to aid a stockholder in selling his stock, advised and effected a sale thereof at a certain price and caused the transfer to be made to a third person, whom the stockholder supposed to be the purchaser, but who really took it for the president

and afterwards transferred it to him, it was held that the president was liable to the stockholder for the ditference between the real value of the stock and the price for which it was sold.45 An agent must communicate all he knows relative to the property; and if any reasonable doubt can exist the transaction cannot be sustained.46 Courts of equity will open and examine accounts after any length of time ih respect of fraud.47

An Agent cannot be Secretly Instructed Adversely to his Principal.-H. & B. were clients of the same solicitor, M. to whom B. gave an authority in writing to sell certain property. M. agreed with H. to sell the property to him. Held, that this was a transaction in which there was a necessity for the utmost openness of dealing, and the court not being satisfied that it existed in this case refused specific performance of the agreement.4 A broker employed to sell or exchange property, cannot properly act for a customer; and, if . he exacts from a customer a conditional promise of compensation, he cannot recover any compensation from the owner for services, although a sale or exchange is effected with such customer.49 Neither could he collect any compensation from the customer.50

An Agent Cannot Act for Two Conflicting Principals. In the case of the Panama and South Pacific Telegraph Company v. India Rubber, Gutta Percha, and Telegraph Company, Sir W. M. James, L. J., lays down the principal that any surreptitious dealing between one principal to a contract and the agent of the other principal is a fraud in equity, and entitles the first named principal to have the contract rescinded, and to refuse to proceed with it any shape.51 And in a Pennsylvania case, Chief Justice Thompson says: “We have the authority of Holy Writ for saying that: 'no man can serve two masters; for either he will hate the one and love the other, or else he will hold to the one and despise the other.' All human experience sanctions the undoubted truth and purity of this philosophy, and it is received as a cardinal principal in every system of enlightened jurisprudence.” 52 A broker acting for both parties in effecting an exchange of property can recover compensation from neither, unless his double employment was known and assented to by both.58

A director of a joint stock company is in a fiduciary position towards the company, and if he makes any profit on account of transactions of business when he is acting for the company, he must account for them to the company. So, if, acting for himself, he proposes to the company a contract from the execution of which he will derive a profit, that profit belongs to the com

pany.54

An Agent Selling to Himself Must Account for any Surplus.-So, where an agent, authorized to sell a tract of land at a given price, sold a portion of it for a larger sum and placed the legal title to the residue

30 Hawley v. Cramer, 4 Cow. 717. 31 Cook v. Burlin Co. 43 Wis. 433; N. Y. Cent. Ins. Co. v Nat. Prot. Ins. Co. 14 N. Y. 85. 2 Oliver v. Court, 8 Price, 170. 33 Cook v. Burlin Co. 43 Wis. 433. 34 Banks v. Judah, 8 Vonn. 146, where a corporation sold its property to a majority of its members. Wilbur v. Lynde, 49 Cal. 290, where a corporation gave its note to its trustees. 25 Ex parte Lacey, 6 Ves. 626. * Rankin v. Porter, 7 Watts, 387. 37 Godin v. Cincinnati & Whitewater Canal Co. 18 Ohio St. 169. 38 Rothschild v. Brookman, 6 Bligh, 197. » Lewis v. Hillman, 3 H. of L. Cas. 607. 40 Cane v. Allen, 2 Dow, 289. 1 Bowles v. Stewart, 1 Sch. & Lef. 209.

Shepherd v. Chewter, 1 Camp. 274. * Maddeford v. Anstwick, 1 Sim. 90. # Dunbar v. Tredennick, 2 Ball & B. 304.

45 Fisher v. Budlong. 10 R. I. 525; Laidlaw v. Organ, note, 2 Wheat. 178.

46 Lady Ormond v. Hutchinson, 16 Ves. 107.
47 Beaumont v. Boultbee,35 Ves. 485.
48 Hesse v. Bricht, 6 DeG. M. & G. 623.
49 Walker v. Osgood, 98 Mass. 348.
50 Raisin v. Clark. 41 Md. 158.

51 P. & S. P. T. Co. v. I. R. G. P. & T. Co. L. R. 10 Ch. Ap. 515.

52 Everhart v. Searle, 71 Pa. St. 259; Kimber v. Barber, L. R. 8 Ch. Ap. 56; Farnsworth v. Hemmer, 1 Allen, 494 ; Pugsley v. Murray, 4 E. D. Smith, 245; Walker V. Os. good, 98 Mass. 348; Raisin v. Clark, 41 Md. 158; Fish v. Leser, 69 Ill. 394.

83 kice v. Wood, 113 Mass. 133.

34 Liquidators v. Coleman, L. R. 6; E. & I. App., Cas. 189.

Provided he does so at the earliest moment after discovering the fraud. And he must restore or offer to restore all he has received under the contract. He cannot rescind in part and affirm as to the residue, even where the sale is of several articles at distinct prices for each.67 But where the party who practiced the fraud has entangled and complicated the subject of the contract, so as to render it impossible that he should be restored to his former condition, the injured party may rescind the contract by doing whatever is in bis power to annul what has been done.68

The Statute of Limitations is Generally a bar in Equity, But it does not Run against a Trust unless it be a mere Constructive Trust.–The statute of limitations in a good plea in equity as well as at law,69 but it does not apply to trusts as long as the relation of trus. tee and cestui que trust exists between the parties. But as to cases of merely constructive trusts, created by courts of equity, or cases which in a sense are treated for some purposes as implied trusts, to which, how. ever, legal remedies are applicable, the doctrine cannot be admitted that the statute of limitations does not embrace them.71

T. D. HAWLEY. Detroit, Mich.

for his own benefit in a third party, it was held that the residue should be released to the principal and that the agent should account for the excess received for the portion sold.55 And if an agent authorized to sell at a fixed price sells for a higher price, he must account to his principal for the excess.56 And where an agent purchases land for his principal, if the agent represents that he paid a larger sum, than he actually did, he must account to the principal for the difference between the sum he paid and the sum he received from the principal.57

An Agent, his Agency being Ended, May deal with the Principal.-In a note to Fox v. Macreth,as the reporter says: “the result of the cases seems now to be that a purchase by a trustee for sale of the trust property may always be set aside and that it is not incumbent upon the party to show an advantage gained by such trustee.59 He may purchase, however, if he completely divest himself of the character of trustee, and contract with the cestui que trust, the latter being fully apprised of every material fact.” 60 And where a principal, after a full knowledge of all the circumstances, deliberately ratifies the act of the agent, or acquiesces in it for a great length of time, it will become obligatory upon him; not by its own intrinsic force, but because he waives the protection given by the law and deals with the agent as a person, quoad hoc, discharged of his agency.61

Executors using their Testators Assets will be Charged with Profits if any are Made.-An executor acting with regard to the testator's property in any other manner than the trust requires is answerable for any gain and is liable for any loss.62 That the parties whose funds have been misapplied, should, in every case have their option of receiving the actual profits made or interest according to circumstances, appears a rule exposed to no serious objection. And although the court may allow compound interest, yet this seems, generally speaking, much less advisable than an account of actual profits.3

A Deed Obtained by Fraud, Creates a Trust and the Trust may be Proved by Parol Evidence.-In cases of a joint purchase where each purchaser is to have an interest in proportion to his advances, parol evidence is admissible to establish the trust, as well as to rebut, control or vary it. It is a fraud for an agent to avail himself of his confidential relation to drive a bargain or to create an interest adverse to that of his principal in the transaction, and that fraud creates a trust, even when the agency must be proved only by parol. The statute of frauds is never allowed as to protection to frauds or as a means of seducing the unwary into false confidence to their injury.64

A Party Rescinding a Contract, Must Return the Consideration Received.—A sale procured by fraud is not absolutely void. The defrauded party has his option to avoid or affirm the sale. But if he designs to rescind the contract, he must restore the parties to the condition in which they were at the time of ihe sale.65

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55 Kerfoot v. Hyman, 52 111. 512. 56 Merryman v. David, 31 III. 404. 57 Ely v. Hunford, 65 11!. 267; Cottom y. Holliday, 59 Ill.

1. ACTION-When Transferee May not Bring Ac

tion in his own Name on Labor Tickets.—The printed certificates sued on in this case, issued by the defendant corporation, or by its authority, and denominated "labor tickets,” being made payable on their face “to employes only," and indorsed "not transferable,” will not support an action by an assignee in his own name. The opinion of the court, delivered by Somerville, J., says:

"The certiticates show on their faces that they are payable to the employes only, and to no one else. They are expressly declared to be not transferable, which negatives any promise of defendant, other. wise implied, that payment would be made to any assignee or transferee of the holders. They were issued with this express understanding, which was assented to by the employes when they received them, and the plaintiffs took the instruments with full notice of this restriction because it apo peared on the face of the paper. The transfera. bility of the paper was thus destroyed by the con

177

58 Fox v. Macreath, 10 H. of L. Cases, 329. 59 Ex parte Lacey, 6 Ves. 627. 60 Coles v. Trecothick, 9 Ves. 234; Davone v. Fauning, 2 Johns. Ch. 256.

61 Note to Whichcote v. Lawrence, 3 Ves. 740.
62 Piety v. Stace, 4 Ves. 620.
63 Palmer v. Mitchell, 2 Myl. & K. 673.
64 Jenkins v. Eldredge, 3 Story, 185.
65 Matteawan Co. v. Bently, 13 Barb. 641.

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