253 N.W. 3 | Minn. | 1934
"Wherever, then, the agent is called upon by his principal to do an act which is not manifestly illegal, and which he does not know to be wrong, the law implies a promise on the part of the principal to indemnify the agent for such losses as flow directly and immediately *58 from the very execution of the agency." 1 Mechem, Agency (2 ed.) § 1603.
Under the principle stated, it has been held that a principal must reimburse the agent for the reasonable attorneys' fees incurred by the agent in defending himself in an action brought by a third party on account of some transaction conducted by the agent in good faith in behalf of the principal, even though the third party action was unfounded but not brought in bad faith. Hoch v. Duluth B. M. Co.
Are any facts pleaded which justified plaintiff in employing separate attorneys in the appeal? We think not. The allegation that plaintiff had holdings of real estate exceeding in value the judgment is of no importance in the absence of any averment that defendant was not amply prepared to satisfy the judgment. Nor are we inclined to stress the fact that the trial attorneys made a joint instead of a separate motion for a directed verdict in favor of defendants. The defendant Ames nevertheless obtained a directed *59 verdict. We do not overlook the allegation that the attorneys engaged by plaintiff to carry on the litigation for him solely labored with the attorneys originally retained and joined in the brief and the oral argument on the appeal. It is not alleged that defendant requested this be done or that it agreed to pay for the services of the attorneys plaintiff employed to carry on the appeal for him alone. Nor should there be any implied agreement to do so, for plaintiff and the other two personal defendants owned defendant's stock and were personally interested in the defense.
As far as this complaint goes, plaintiff was the sole managing agent and officer of defendant. If it became obligated to the Marquette Ore Company because of any representation made in negotiating the sublease, that representation was made by plaintiff. It is not alleged that any other person participated in the negotiations. Nor are facts alleged from which it can be inferred that defendant was guilty of any false representation that was unknown to plaintiff, or that it furnished plaintiff with any improper data, report, or information to be communicated to the Marquette Ore Company to induce it to enter the sublease. So the defendant had to stand or fall on the defense plaintiff could make. Nor is it claimed that the successful appeal could not have been attained without the aid of the attorneys plaintiff employed on his sole account.
In the cases above cited and in those therein referred to, the agent was sued alone by the third party, and when the agent was reimbursed for reasonable attorneys' fees it appeared that the principal had refused or neglected to furnish attorneys for the agent after notice or knowledge of the suit. After some search we have found no case where, in a suit by a third party against both the principal and agent in which the principal employed competent attorneys to defend both, it was held that the agent was nevertheless entitled to employ his own separate attorney and recover the reasonable attorney's fees from the principal.
The order is affirmed.
DEVANEY, Chief Justice, absent in attendance on board of pardons, took no part.
LORING, Justice, took no part. *60