Collins v. Case

23 Wis. 230 | Wis. | 1868

Drxosr, C. J.

Cross appeals from the same judgment; which judgment, we think, must be affirmed on both appeals, for the reasons given by the judge of the circuit court in the able opinion filed by him when the cause was there decided. The correctness of the judgment will at once appear when we consider the nature of the action. The complaint charges the defendant Case, in his capacity of agent, with having collected and received from the subscribers, including his own subscription, a large sum of money, only a portion of which was paid out by him in the purchase of the lands and in the necessary incidental expenses, and the residue fraudulently appropriated to his own use. The object of the action, and the sole object, is to compel him to account for and pay over to the parties in interest the money so fraudulently appropriated to his own use. It is an action to compel him to account for the money paid in by the subscribers, assuming their subscriptions to have been fairly and hon-' orablv obtained, and is not, therefore, an action charging him with fraud or deceit in procuring tbe other subscribers, or any of them, to become such and to pay in their money. Such an action from its nature would be an action at law, and not a suit in equity. The fraud here charged was after the subscriptions were made, and consists alone in the secret agreement entered into between the defendant and the owners of the land, by which the defendant was, under pretense of commissions to be paid by the owners to him, or otherwise, enabled to procure the title at a less price than was supposed by the other subscribers, or than was represented by him to them. And we furthermore observe that there is nothing in the complaint charging the defendant with fraud or negligence in the collection of the subscriptions, or with fraudulently procuring any other subscriber to be relieved from the payment of his subscription, or to be let in as an apparent subscriber in good faith without such payment. The complaint charges that each subscriber paid over to the defendant the amount of money set opposite his name in the subscription list; and the questions at issue are, whether the subscribers did so, or what sums of money were so paid over to him; and of those sums what amount, if any, has been wrongfully appropriated to his own use by reason of the alleged secret and corrupt agreement between him and the owners of the land.

It is true that the complaint, in addition, charged that the defendant, in his report to the subscribers in July, 1865, represented all or nearly all of the subscriptions as having been paid. But it is obvious, as the circuit judge says, that there was nothing in that transaction to constitute an estoppel. It was at most a mere misrepresentation or false statement as to his past dealings with the company. No one has advanced money or changed his position on account of that statement.

Bearing in mind, then, that the issues presented by the pleadings are, as to what sums of money have actually come to the hands of the defendant in the course of his agency, and whether they have all been duly and properly accounted for, it will be seen that the circuit judge was correct when he said that a very large part of the testimony received was totally irrelevant and could not be considered. The plaintiffs having, therefore, by their pleadings, restricted themselves to a recovery of their share of the money actually paid in to the defendant and not disbursed by him on account of the company or for its benefit, the only difficult question arising is, as to whether the defendant’s own subscription must be considered as so much money paid in or held by him for the use of the company. In the purchase of the land he was acting strictly in the capacity of agent, and as such was bound to a faithful and honest discharge of his duties. He could obtain no advantage or make no profit for himself inconsistent with the interests of his principals. He was made agent on the faith of his being a bona fide subscriber, having paid in, or holding in his own hands for the use of the company, the money represented by his subscription. He retains his interest in the property of the company, or his shares of the stock, the same as if his subscription had been actually paid in. If he is permitted to do so without the payment of his subscription, then it is manifest that he will have gained, by means of his agency, a very considerable private advantage at the expense of his principals, and quite contrary to their interest, which he was bound to subserve. Eor these reasons we think that he was correctly required to account for his own subscription as so much money paid in and held by him as agent, and that the judgment of the circuit court should be affirmed.

By the Oowrt. — Judgment affirmed.