Everhart v. Searle , 71 Pa. 256 ( 1872 )

The opinion of the court was delivered, by

Thompson, C. J.

The case before us is rather novel. It involves a question whether the same person may be an agent in a private transaction for both parties, without the consent of both, so as to entitle him to compensation from both or either. 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 principle in every system of enlightened jurisprudence.

The plaintiff below was appointed by one A. S. Flagg, of Massachusetts, agent to sell certain real estate, situate in Luzerne county, Pennsylvania, and was to receive for his compensation all that he might realize over $125 per acre. Two days after the date of this authority, to wit, on the 17th January 1870, he accepted from the plaintiff in error the contract in writing upon which this suit was brought, promising to pay him $500 as therein set forth, “ for his services in assisting him to negotiate a sale and purchase, by Mm of fourteen of eighteen shares, or all, if he can obtain them conveniently, of the eighteen (shares) of a certain piece or parcel of land situate in Lackawanna township,” &c., composed of the same land he was appointed to sell. We need not spend time to argue, what is not susceptible of controversy, that by the terms of the instrument he accepted employment as agent to purchase the same land which he was employed as agent to sell: It is true, the learned judge below, no doubt strongly impressed by the maxim “that the laborer is worthy of his hire,” endeavored to make a distinction in the transaction between an undertaking as an agent, and the sale of a preference to the defendant as a buyer. I ought to say, however, tnat this was hardly his interpretation of the writing, but rather the plaintiff’s explanation of his duty under the contract. But the plaintiff, as a witness on the stand, had no right to construe the language of the written contract on which he had brought his suit. There was nothing left out, and no ambiguity in it, and therefore not within the rule of oral explanation. The interpretation was for the court on the terms of the instrument, and they obviously stipulated for the plaintiff’s services to assist the defendant in negotiating for the shares mentioned, “ or all, if he can obtain them conveniently.” He was thus to be acting with the defendant, or by himself, for the defendant, just as the object in view might demand. This was an agency “pure and simple.” I do not think, however, that the result as to the plaintiff’s claim ought to be at all different from what it is likely to be, on the ground assumed by the learned court; for even on that ground the agent bargained away what his first employer had engaged, viz., his discretion. This was bad faith towards him, and ex maleficio non oritur contractus.

There was plausibility and seeming force in the argument that as Flagg, the plaintiff’s principal in the sale, was not injured by the arrangement with the defendant, there was nothing wrong in making that arrangement. This is specious, but not sound. The transaction is to be regarded as against the policy of the law, and not binding upon a party who has a right to object to it. “It matters not,” it is said, p. 210, of Hare and Wallace’s Notes, 1 Lead. Cases in Eq., “ that there was no fraud meditated and no injury done; the rule is' not intended to be remedial of actual wrong, but preventive of the possibility of it.” This was said of “ any one who acts representatively, or whose office is to advise or operate, not for himself but for others. The principle is general, that a trustee, so far as the trust extends, can never be a purchaser of the property embraced under the trusts without the assent of all the persons interested; and this principle applies to executors, administrators, guardians, attorneys at law, general and special agents, * * * and to all persons, judicial or private, ministerial or counselling, who in any respect have a concern in the sale of the property of others; it extends to sales by public auction, and to judicial sales as well as to private Id. 209 ; and for this innumerable authorities, English and American, are cited. To the same effect is Campbell v. The Pennsylvania Life Insurance Co., 2 Whart. 55; Paley on Agency 32. “ It is a fundamental rule applicable to both sales and purchases, that an agent employed to sell cannot make himself the purchaser ; nor if employed to purchase can be himself the seller. The expediency and justice of this rule are too obvious to require explanation. For with whatever fairness he may deal between himself and his employer, yet he is no longer that which his services require and his principal supposes and retains Mm to be.” It is clear from all the authorities, not only those referred to, but those cited in the notes to Fox v. Mackreth and Pott v. The Same, 1 Lead. Cases in Eq. 172, not here specially referred to, as also in numerous cases in our reports from Lazarus and Others v. Bryson, 8 Binn. 54, that an agent to sell cannot become an agent to buy. It is against the policy of the law that such a principle should hold: Ex parte Bennett, 10 Vesey 381. “ The ground on which the disqualification rests,” it was said in 8 Tomlin’s Brown 72, “is no other than that principle which dictates that a person cannot be both judge and party. No man can serve two masters. He that is intrusted with the interests of others cannot be allowed to make the business an object of interest to himself, because, from a frailty of nature, one who has the power will be too readily seized with the inclination to use the opportunity for serving his own interest at the expense of those for whom he is intrusted. The danger of temptation from the facility and advantage for doing wrong which a particular situation affords, does, out of the mere necessity, work a disqualification.”

We regard the case of the plaintiff below within the principles of these citations, although it doubtless appeared to him as it did to his able counsel and the learned court, that there was nothing of actual or meditated fraud in the transaction; but the learned judge, we think, erred in refusing the defendant’s 1st point, and in charging as set forth in the several assignments of error.

We have no cognisance of the manner in which a judge may have answered points. That must be governed by his own taste and sense of justice. We think, however, that the points should be distinctly read and answered seriatim, and explained, if need be, to an understanding of them by the jury, and then distinctly affirmed, negatived or answered, so that the jury may know that that which has been asserted is or is not the law. From the repeated complaints we have on this subject, we think that care is not always observed in this particular. We have never heard it before in regard to the able and careful judges of the Luzerne district, and we do not know now whether or not the complaint has not arisen out of the over anxiety of counsel, rather than in any want of attention on the part of the court.

From the principles announced, it will be apparent that our opinion is against the right of the plaintiff below to recover from the defendant on the contract sued upon, and therefore we will reverse without awarding a venire de novo. If there be reasons shown hereafter sufficient to authorize a venire, it can be awarded.

Judgment reversed.