219 Pa. 113 | Pa. | 1907
Opinion by
The findings of fact in this case serve inadequately to indicate the real question in issue. There is no separate and distinct finding with respect to the original convention of the parties to the present controversy. That there was such convention is a fact that admits of no dispute, and the evidence abundantly discloses the object, terms and scope of the undertaking that was to be entered upon pursuant thereto. Any statement of the case from which these matters are omitted must necessarily be imperfect; they have a significance too large to be overlooked. That they may be derived inferentially from such facts as have been specifically found, may be true' in a measure; but to give them no larger expression is either to obscure or depreciate them, likely both. “"Whenthe appellate court is satisfied that facts, have been found without proof, or material facts established by the proofs have not been found, it follows that there has been plain mistake. In the several stages of the proceeding there is no place for perfunctory consideration of the evidence relative to the facts in dispute.” Worrall’s App., 110 Pa. 349. That the true issue may
C. W. Bergner, the husband of plaintiff, and father of defendant, who before his death, proved to be insolvent, had pledged with the Northwestern Bank as collateral for certain loans made to him, stock in the Bergner & Engel Brewing Company, and stock in the O’Brien Coal Company, and had also pledged a still larger amount of the Brewing Company’s stock with the Fourth Street National Bank as collateral for like loans. The scheme proposed by the defendant to the plaintiff contemplated the purchase of this stock for the latter, the purchase to be made by the defendant in his own name, he to be permitted to so hold it in order to secure to himself the voting power of the stock, but all the money required to effect the purchase was to be supplied by the plaintiff. In the financial result of the undertaking, whether it should show profit or loss, the defendant was to have no share. He was an official of the brewing company, and the benefit he expected to derive from the transaction was in the larger support he would have with this stock in friendly hands. It was contemplated that by selling certain real estate which she owned, the plaintiff could realize in cash upwards of $47,000. While it was not expected that all the stock could be purchased for any such sum, it was thought that with what it did suffice to purchase in hand, a way could be found to obtain the balance. To the scheme as thus presented by defendant, the plaintiff assented, and in furtherance of it proceeded to make sale of her real estate. The result of the sale was disappointing, since it yielded her but $36,500. Notwithstanding this, however, the undertaking was proceeded with, not in the way originally proposed, by paying off the loans and lifting the collateral, but by purchase of the collateral as the loans should be called. This involved no change in object or purpose, but was simply a modification of details. The first block of collateral stock thereafter offered at sale, February, 1904, was 125 of preferred Bergner & Engel held by the Fletcher estate. This block of stock was not one of those referred to when the scheme was originally entered upon, but it was purchased by the defendant with money advanced by .the
We have stated the original undertaking as understood by
The defendant’s right to terminate his agency at any time is conceded. If he exercised it when he says he did, in advance of the second purchase, in a way the law will adjudge sufficient, then his contention as to his ownership of a proportionate part of the stock must be sustained; otherwise not. The qualification as we have stated it is a necessary one; the privilege must be exercised in a way the law will adjudge sufficient. No fixed form or method is prescribed; but to be effective to relieve the agent from the duties and obligations he has assumed, the renunciation must not only be positive and unequivocal, but it is essential that it be made known to the principal. An undisclosed purpose to renounce is without effect. As the intelligent assent of the parties is necessary to establish the relation, so its dissolution must rest upon the knowledge of both. The rule is laid down in 1 Am. & Eng. Ency. of Law (2d ed.), under the title of Agency, page 1082, supported by the authorities there collated is, that “ An agent to purchase will not be allowed to purchase for himself and hold the property in his own name, unless he has openly and notoriously discharged himself from his agency.” However much this statement of the rule may be qualified by varying circumstances, certain it is that a renunciation under any conditions, to enable an agent to do what is here expressed, must be communicated to the principal in such a way as to bring home to him notice of the agent’s determination. It is not pretended that the defendant expressed to the plaintiff a determination to end his agency, at any other time during all these transactions, than on the occasion when he applied to her for money to make the second purchase of stock, and found that she had but $11,800 in cash remaining. It is necessary to recur to his testimony to see just what there transpired. We give the questions and answers. “ Q. Didn’t you take the 125 shares of Bergner & Engel preferred you had bought the month before and multiply it by fifty, and suggest it was pos
Evidently up to this point of time the defendant recognized the agency he had assumed as continuing. Because he was disappointed in the amount of money the plaintiff could then furnish he determined to renounce it. This is the reason ho gave. It implies that the original scheme for purchasing all the stock had been made impracticable by this shortage of cash. But why should this be so ? The situation then confronting the parties was bound sooner or later to occur in the course of the transaction. Had the entire amount derived from the sale of plaintiff’s real estate been applied to the purchase of the stock, when it came to the last and heaviest sale, the amount remaining in the fund would have been wholly inadequate, and it would have become necessary to borrow money to accomplish the purpose by a pledge of what had previously been purchased. There can be no doubt whatever that such recourse was contemplated from the beginning. What possible difference could it make that the point when borrowing became necessary was reached sooner than the defendant expected ? This fact did not imperil the scheme, as the result showed, for the additional amount required for the second purchase was readily borrowed by a pledge of stock. Hor did it prevent the purchase of the heaviest block by the same method when sold later on. It was altogether unnecessary, if it was defendant’s purpose to renounce his agency, to assign any reason; but when he says that he assigned one which both he and the plaintiff must have known had no basis for support, and that the latter accepted it and acquiesced in
Mor does the subsequent conduct of the parties furnish ground for any different conclusion. It would extend this opinion unduly were we to review here the evidence on this branch of the case. In the several efforts that were made to settle and compromise, it is true that plaintiff demanded much less than her present claim; but nowhere do we find any admission on her part that any change had been made in the original agreement under which the entire ownership of the stock was to be in her. On the other hand, the whole course of the defendant’s dealing with the plaintiff throughout; the partial accounts and settlements he submitted to her; the acknowledgment he wrote himself and subscribed containing a clear admission that the stock purchased was the plaintiff’s; the fact that in an account rendered he charged her with the sum of $135 which he had advanced in connection with the third purchase, which ho now claims was wholly for himself; the admissions testified to by Mr. Warwick to the effect that the stock was the plaintiff’s, all these considered, even in the light of the defendant’s explanations, leave the case clear of all possible doubt.
In the issue raised the burden was upon the defendant. The bill alleged, not in so many words, but substantially, an agency, and that the stock was purchased under it. The answer admitted the agency, but alleged that it had been abandoned before the completion of the transaction. The bill charged that a trust resulted. This the answer denied. The inquiry thus became an open one. Though the trust and all. the circumstances out of which it arises, may be denied under oath in the answer, yet the facts may be proved by parol in opposition to the answer: 1 Perry on Trusts, p. JL09.
In conclusion we repeat, the governing question in the case is one of mixed law and fact — did the defendant acquit himself of his agency ? Upon the law and evidence we find that