plaintiff had been an occasional visitor at the store of the defendant, and was well known to the defendant as an expert. The plaintiff and F. A. Robinson visited the store of the defendant together, and the plaintiff, in the presence of the defendant, examined the piano, and found the tone to be good and the instrument a good one, and so expressed himself. His opinion was communicated to Mrs. Robinson. The plaintiff did everything to this point of time in the utmost fairness and good faith towards the Robinsons, and gave them the benefit of his unbiased judg ment. Mrs. Robinson did not however immediately purchase, and the plaintiff afterward happening in the store, the defendant asked him why Mrs. Robinson did not buy the piano. The plaintiff told him that he did not know, and explained the relation he sustained toward the Robinsons. The defendant knew that he was acting for the Robinsons, and that the Robinsons relied upon his judgment, and for this reason he requested him to go further than he had before gone, and to endeavor to effect a sale, and to urge the piano upon the Robinsons. This the plaintiff promised to do, and did. A sale was effected, and the plaintiff's exertions and recommendations were instrumental in effecting it. Neither of the Robinsons at any time knew that the plaintiff was acting for the defendant, and the plaintiff acted for the Robinsons merely as a friend, without reward or pay. After the sale was effected the plaintiff demanded payment for his services, and the defendant then denied that he had ever employed him; but the parties finally settled upon the sum of $20 as the amount to be paid.

Upon these facts the court rendered judgment for the plaintiff for $20 damages and his costs, and the defendant brought the the record before this court by a motion in error.

Newton and Arvine, for the plaintiff in error.

Bollman, for the defendant in error.

FOSTER, J.-The principle involved in this case is doubtless of importance; but the amount involved, pecuniarily, is small; so small, as in our opinion hardly to justify bringing the matter here to be decided.

There was gross duplicity on the part of the plaintiff in acting as the confidential friend and adviser of the purchaser of the piano, and at the same time as agent of the vendor, employed by him expressly to effect a sale.

Instead of getplaintiff as an

The party proposing to purchase was deceived. ting, as he supposed he was, the opinion of the expert, without bias and without interest, acting merely as a friend, the plaintiff was in fact acting as the agent of the owner, and charging fees for his services. A sale having been effected through his influence, this suit was brought to obtain a compensation.

We think there should be no recovery. We reach this result not out of any regard for the defendant; he is as fully implicated in the deception practised on the purchaser as the plaintiff himself. The rule in such cases is, that the law leaves the parties where it finds them. The transaction was inconsistent with fair dealing, contrary to sound policy and offensive to good morals.

We do not say that the plaintiff or defendant committed a positive fraud. The plaintiff may have said nothing as to this piano which he did not believe to be true, and the defendant may have demanded and obtained for it no more than it was really worth. But the means resorted to to effect the sale, deceived the purchaser, and were in violation of confidence. Such contracts and acts are deemed equally reprehensible with positive fraud. They are within the same reason and mischief as contracts made and acts done with an evil intent, and are therefore prohibited by law.

Cases of this character, though differing widely in their details, are unforunately not rare in courts of justice. In Carter v. Boehm, 3 Burr. 1910, Lord MANSFIELD said: "Good faith forbids either party, by concealing what he privately knows, to draw another into a bargain from his ignorance of that fact and his believing the contrary." In Chesterfield v. Janssen, 2 Ves. 155, s. c. 1 Atk. 352, Lord HARDWICKE said: "Fraud may be collected or inferred, in the consideration of a court of equity, from the nature and circumstances of the transaction, as being an imposition and deceit on other persons, not parties to the fraudulent agreement." In Fuller v. Dame, 18 Pick. 481, Chief Justice SHAW said: "The law avoids contracts and promises made with a view to place one under wrong influences; those which offer him a temptation to do that which may affect injuriously the rights and interests of third. persons." And again: And again: "If such advice and solicitation, thus understood to be pure and disinterested, may be justly offered from mercenary motives, they would produce all the consequences of absolute misrepresentation and falsehood."

This case comes within a class of cases described in the books as "poundage for recommending customers to buy." The case of

Wyburd v. Stanton, 4 Esp. 179, is directly in point.

That was an action of assumpsit for goods sold and delivered. The plea was the general issue and set-off. One part of the set-off was for certain poundage and reward before that time agreed to be paid, and then due and payable from the plaintiff to the defendant, upon and in respect of certain goods and merchandise before that time sold and delivered by the plaintiff to one Andrew, for and in consideration of the defendant's having recommended the said Andrew to buy the said goods and merchandise from the plaintiff Upon this being stated, Lord ELLENBOROUGH said he thought this demand could not be supported. It was a fraud on third persons. It was accordingly rejected.

We think this principle a salutary one, and applicable to this There is therefore manifest error in the judgment below.

case.

There is no principle of the law of contracts of more vital force than that which requires that the same party shall not be interested or act, either as principal or agent, upon both sides. It is but the adoption and enforcement of that fundamental rule of Christian ethics, "ye cannot serve two masters." The rule extends to a large number of those legal relations, resting upon confidence, trust and dependence upon one side, and advice, direction, superiority and control upon the other. Thus an agent will not be allowed to buy or sell for his principal, of any corporation or joint stock company in which the agent is interested, without acquainting his principal with all the facts known to himself, and allowing him to judge for himself, the principal being of full age and competency to act understandingly and prudently: Taylor v. Salmon, 4 Myl. & Cr. 139. So one cannot make a binding contract where he acts as the agent of both parties: N. Y. Central Ins. Co. v. Nat. Protection Ins. Co., 20 Barb. 470, where the cases are very extensively cited and judiciously analyzed by MASON, J. And in the very recent case of Raisin v. Clark, 41 Md. 158, the court held that a real estate broker, who was employed to sell a property, and effected

an exchange for other real estate, could
not charge the owner of the latter a com-
mission, The law does not permit the
broker in such case to act as agent of
both parties even by express agreement.
Such an agreement would not be en-
forced; and a custom of brokers to re-
ceive a half commission from each
party in an exchange, was held void as
against a settled principle of law.
So the trustee cannot become interest-
ed in the purchase of any portion of
the trust estate: Parkhurst v. Alexan-
der, 1 Johns. Ch 394
And the pur-
chase of any portion of the bankrupt es-
tate by the assignee will be treated as a
trust for the benefit of the creditors: Ex
parte Lacey, 6 Ves. 625. And the same
rule will extend to executors and ad-
ministrators, and to all persons acting
as trustees for sale. And the surety is
not allowed to purchase the debt for his
own benefit, but it will enure to the ben-
efit of the principal debtor: Reed v.
Norris, 2 Myl. & Cr. 374. So an agent
who discovers a defect in the title to
land of his principal cannot procure
the title for himself: Ringo v. Binns,
10 Pet. (U. S.) 269. The principle of
these cases is now universally recog
nised. It is very learnedly discussed by
two eminent English chancellors, in the

Supreme Court of Errors of Connecticut.

HUNGERFORD'S APPEAL FROM PROBATE.

A former recovery, to become a bar, must be for the same cause of action, but not necessarily in the same form of action.

THIS was a claim presented to the commissioners by the appellant as follows:

"Estate of R. D. Hicks to Dana L. Hungerford, Dr. February 1st 1870, to my services in your business, endeavoring to sell the Clark House in Winsted, from the 1st day of December 1869, to the 1st day of February 1870, and cash expenses in said business,

The appellant offered evidence, and proved, that between the 3d day of December 1869, and the 9th of February 1870, he devoted several days of his time in the service of Hicks, during his lifetime, in endeavoring to sell a hotel owned by Hicks in the town of Winsted, called the Clark House, which services were worth $10 per day, and that during the time he expended in necessary expenses in the business the sum of $75.

He further offered evidence, and proved, that on the 3d day of December 1869, he entered into the following written contract with Hicks:

"Winsted, Conn., Dec. 3d 1869. Whereas D. L. Hungerford has proposed to find some person or persons who will purchase my hotel, called the Clark House, in Winsted: Now I do hereby agree that if he shall find or send any person or persons who will purchase said property at any terms to which I may assent, and I shall thereupon make the sale to such person or persons, I will pay him, the said D. L. Hungerford, as a compensation for his services in the matter, the sum of $1000, when said sale is effected. R. D. HICKS."

In connection therewith he offered evidence to prove that Hicks, in the latter part of December 1869, or in the first part of January 1870, sold the Clark House to one Dennis W. Stevens, and after the sale concealed the fact from the appellant, and said to the latter "you are doing well, go on and make a noise about the property; it must be sold before the 1st of April." And that, from this time, which was the 13th of January 1870, the appellant continued his efforts to find a purchaser for the property, until the 7th day of February 1870, during which time he expended considerable sums of money in the matter.

The appellee claimed that the appellant was barred of a recovery for his services and expenses by reason of a judgment heretofore rendered by the Superior Court between the parties (which case came to the Supreme Court and is reported in 39 Conn. Rep. 259), but the appellant claimed that he ought not to be barred by that judgment, as it was rendered solely upon the question whether he was entitled to recover the sum of $1000 by virtue of the written contract, and the appellant claimed that the court, in proceeding to and rendering the judgment, did so entirely upon the written contract, and that he did not offer any evidence or make