*1 Company, Paving Connelly F. trading P. F. as P. Connelly, Bridge Special Dis Road & pellant, v. The Ap Appellees. trict No. al., et
En Banc. Opinion filed March *2 Hampton & Bull, Appellant; for
Charles Blake, Appellees. F.
Davis, Commissioner.: Hills- Circuit Court in the his bill appellant filed alleged in substance it was borough wherein County, Bridge Road and day Special February, 4th on the Board through the chairman District No. into Commissioners, fourteen contracts County entered district; in said roads paved for the construction *3 complainant had contract's, letting said after the of May during April, months of negotiations of the series through defendant, the part in conducted and June, complain- employee of a trusted Cooper, whn was J. W. super- general as transacting business ant, in engaged and com- that superintendent; as assistant intendent and later the of in in State engaged other work was then plainant Cooper and trusted to the- said left with Arkansas, and mat- employee, the Warntjers, another and to one Walter and instructed work, other for securing ter of contracts particularly to the Cooper Warntjers said and the said the of securing matter from Smith Bros. Construction Company upon a sub-contract the said roads “for double covering asphalt slag surface and treatment with and ’ ’ spotting slag upon toads; each of said that Cooper with design the benefiting fraudulent of in himself, and bad complainant, faith towards at a time in the when he-was employ of name and his own use complainant, for. and fraudulently benefit entered into with sub-contracts Company, said Brothers Construction sweeping Smith for for, covering and asphalt slag, the at and price of per square yard;” four cents that Smith Brothers Con- of Company Cooper's knew employment; struction that complainant did not learn of the existence Cooper of the until after said work completed contract was and com- inspecting in Florida plainant work; other ap- proximately a certain stated amount had been paid to safety deposit in a and that was contract, said Cooper Cooper, Mrs. W. wife of Tampa name of J. box been advanced that other had Cooper; W. the said J. sums monthly estimates,” the exact “for upon said contracts final pay- being but complainant, amount unknown to any sum then and that Cooper, ment had not made to been work for his sub-contract “is Cooper due for called belongs complainant. bill con- property and to” accounting, all sums which prayer tains a may be Cooper by due reason of sub-contract ex- property paid complainant, deemed to be cept was entitled to $1,300.00, sum of salary during period performance contract, general and for relief. day On 25th January, court made reciting an order that the defendants, J. W. Smith Brothers Cooper, Company, Special Construction Road Bridge District No. and the county commis- appeared sioners had before the court counsel, said Cooper being present in court and the complainant being *4 represented by counsel, and that parties having en- agreement tered into an before the court/‘That when the Special said Road Bridge and District Number Five and county the said commissioners have ascertained the amount due to Smith Brothers Construction Company for the work sweeping of and covering asphalt with slag, as described the bill of complaint in this that the cause, amount so found to be due shall paid be to the Citizens Bank & Trust Company, a corporation, of Tampa, Florida, held said bank until final decree is secured in this ’’ cause, and it was so ordered, and it was further ordered that the said defendants be they and and each of them thereby enjoined were restrained and from removing or withdrawing the said sum so ascertained until the further order of the court. Company answered Brothers Construction
Smith afterwards, complaint was as the bill of bill, inasmuch but prejudice as without complainant, of dismissed motion on dissolved injunction granted was theretofore to it and the it is Company, Construction as to said Smith Brothers answer. necessary not to recite the contents of such answered, wife, defendants, W. and his J. Cooper, admitting payment that final had been made no Com- Smith Brothers Construction sub-contractor allegations contractor, denying pany, general certain allega- demanding proof and of still material strict other tions of bill that nor denied. were neither admitted These at the time answering defendants further said that' making Cooper, of the contract between J. W. on the 10th Company, Smith Brothers Construction June, complainant 1927, Cooper quit employ had independent as an into business himself entered for. with full contractor secured the contract complainant; complain- the part on that he notified intention, by telegram at his Eock of (cid:127)Ms ant office Little attempted “if complainant and that notified him he t.o contract, longer not on the secure said could remain fully payroll complainant;” complainant was making of for the rea- informed of the the said contract complainant bidder; a competitive son that was complainant (Cooper) neither nor he was awarded the upon bids, competitive their sub-contract but com- sub-contract work for plainant awarded spreading asphalt roads; on the that Smith Brothers Company commenced the work of sweeping Construction *5 covering asphalt slag the with with its men and own but June, through 10th of on the its afterwards, superintenent, the McGinnis, D. entered into said with F. contract said do work. to that defendant
The defendant, Furr, also answered the bill. Further stating than that profits arising he claimed one-half of from the contract between Brothers Cooper and Smith agree- Construction Company, partnership reason of a ment unnecessary between and himself, it is to refer to his answer.
On the third of February, agreement was entered into all parties that Smith Brothers Construc- tion Company was due under the with Cooper contract sum $14,079.62; special and bridge road dis- trict and county pay commissioners Brothers Smith Company Construction all monies due there- owing and or after to become owing due and it on account of the work done district, the roads said and that said district and county commissioners stand released and dis- charged of any and and all liability; from further $14,079.62 the said sum of deposited by Smith Brothers Company Construction Bank & Citizens Trust Com- pany Tampa, special escrow, be held in a account subject to court, the further orders and decrees of the and upon deposit being such Smith Brothers Con- made, Company struction stand discharged released and any liability further all and that temporary the said restraining order agreement. be modified to conform to the pro
A decree against special entered confesso bridge county district commissioners. road0and cause was special referred to a master to take upon afterwards testimony, hearing the court made a dismissing decree bill and dissolving the complaint, injunction in so far as it moneys affected the bank litigation. as related this From this decree the com- plainant appealed Court. testimony
The record of t'he is rather voluminous and practical standpoint from a it is inexpedient more to do *6 evidence has to what than our conclusions as state statements certain brief references established, with documentary proof adduced at made or to witnesses hearing. Cooper W. for a number
We deem it that J. established ap- years employed by been prior to June had 10, 1927, pellant, Arkansas Connelly, P. F. who a resident of was and Florida, except remained out of when here busi- employment ness. It reason came to and coming super- Florida after here acted he Connelly intendent for on certain road work which Con- nelly had contracted to do. As he such superintendent, had right hire discharge minor pay employees, them services, for their carry he a account bank so that could check funds of Connelly out in local gen- banks and erally to look after the employer business of in cer- tain Florida, localities in occasion, that at least on one he took on a small employer contract for his for road work. quite while, For a prior to June, the month however, 1927, Connelly had another employee—a nephew—one acted superintendent who as his Warntjers, on other work Connelly had in perhaps who Florida, and had more power in management Connelly’s business in Cooper; State than had that 14 contracts for road work in Bridge Road and District Number Hillsborough County, had Smith been let to Brothers Construction Company, a building corporation, for of 14 roads in that district. When these were let, contracts the appellant, Connelly, with began negotiating Smith Brothers Construction Com- with pany for sub-contract it for this work, and he had get to believe he reason would some the work. How- by was referred officers of the corporation ever, McGinnis, one superintendent, their as a result of ne- he secured a gotiations McGinnis, contract for put- *7 ting asphalt' upon ap- on tarvia and the said roads which pellant says, price hope at a effect, took low with the getting necessary other kinds of work to be figure done at a on the said roads that would enable him to make some money. May Cooper
On 20th, Connelly Rock, wired at Little as follows: you
“Would if I spreading slag care take contract for City.” Smith wire at Brothers once Dade Connelly replied day thereto on the same as follows:
‘‘ give Our contract with I am Smith is that him prices for spreading I slag you keep advise off you it as Connelly cannot do that and work for the Paving Company price too meantime wire me what ’’ you thought you could do it for. 21st, Connelly
On the nest day, dispatched the fol- lowing telegram Cooper:
“Find give you sweep- out what McGinnis will for ing spreading slag and let me know once.” at And to telegram Cooper replied day on the same as follows: you said you
“Melnnis didn’t act as wanted the sweeping and spreading sweeping and as prime for will to start at have once someone will have to do it I I thought put could a foreman on it or do it myself your Bay conversation at you View couldn’t keep job men price you two at paying were only us thought a short time and I could do it for 5 ’’ cents. any further communications evidence of
There is no June this matter until between them with reference telegram to following 1927, when sent Connelly: slag Wal- job spreading
“I Smith Bros. have taken am job up at here break- ter has man on Chiefland-1 I ing hope he will better than him have success *8 regards.” did best part the an intention on do not indicate telegrams
These Brothers Con- a with Smith make contract Cooper to of day the third after contract until the Company struction Connelly that advise he he did not was made and then job spread- he had “taken contract, made a but that had ing slag.” Tampa went and on day Cooper
On the June, 9th day McGinnis, next entered into a contract superintendent Company, of Smith Brothers Construction sweeping spreading slag of and the said upon, a Cooper put-in paid by Connelly roads. bill for and was (though afterwards) wages regular several months his 15, until June 1927.
Cooper Warntjers went testified 9th June had quit and told him that' he go his so-that he could job, Warntjers and take contract. denied Cooper told him this and he was said not advised until Sunday, June 12th, then did not Cooper know that had made a con- work; tract do that he not Cooper’s superior. was Cooper further testified that he had not any had conver- sation with McGinnis with reference subject to the matter his contract until June while McGinnis testified that Cooper negotiations began with him about June 1. One of telegrams quoted hereinabove shows that he was in communication with McGinnis as early May as 21st. Connelly, Warntjers, on on behalf of 9th, June submitted road sweeping a covered to McGinnis bid which spreading slag Connelly was and also the work that already do, under contract to but there is no evidence the record to show that a him for bid submitted appellant only sweeping spreading cover slag. Cooper,.the wit- negotiations with
With reference t'o what think I told “I don’t McGinnis, said: ness, Connelly’s was.” bid sum of Connelly wages
Cooper received per month. $200.00 employment a Court has said that contract for an
This may States, ter- for an indefinite term the United party. Exp. minated at will of either Co. v. Sto- So. vall, 71 Fla. R. So.
In the special absence of circumstances deemed suffi- highest cient to control the a matter, number of the courts country hiring of states in this held at a have named price per week, hiring month or is a definite for the year, *9 period quite many named. equal as courts However, dignity contrary. have held the For *10 operate
from directly transactions which preju- dice of his master’s business.” 1 Labatt’s Master and Servant, 2d ed. 866.
467 “A who, servant without his master’s procures from a sanction, transaction in which he acting is agent as his personal master’s a advantage provided not for, nor contemplated by, the contract hiring, guilty is of a duty.” breach of 5 Labatt’s Master Servant, 2d ed. 6338. employee an
It to be clear that is bound to seems good faith employer, exercise of the utmost towards his profits cannot without the latter’s consent retain or earn- ings performance in course of the received of the em- ployer’s undertaking or in an business constitutes duty employer. Cunningham, breach of to the Boswell v. Quinn 354; 32 Fla. 13 277, Phipps, 805, So. R. v. 93 Fla. 419, 1173; Brightwell R. 54 A. L. R. So. Grantham v. 366, 96 Fla. 885; 907; 117 So. R. Note A. L. 13, R. 869, Mechem on 895. Agency, general
It also seems to be the rule that a servant, after his term of service expired, has compete entitled to footing business with his master on same stranger, as a qualification with the precluded that the servant is using advantage for his own information or material ac- quired by him in course of employment. his 1 Labatt’s Servant, Master and
In Thompson v. 1 Campbell, 527, Ellen- Havelock, Lord borough, holding ship captain that a who had entered agreement into an to let his ship stipulated per at a sum ton per month for its owner against could not action owner recover an agreed per sum per ton month for his personal exertions, having all owner, been received said:' “No man should be allowed to have interest ’’ against duty.
In Michigan Welch, Crown Fender 684, Co. v. 178 N. W. 13 A. L. R. text referring duty the Court in to the
468 supplies principal for his agent purchasing when of who his own account which amount on purchased an additional things: among other profit, said, sold at his duty principal to communicate “It was ought good business, relating to the facts latter,” made to the faith to be known quotes following from Mechem opinion and the 1224, ed., as follows: Agency, 2nd Sec.
‘‘ salutary principle per- that a The well-settled not, shall in the son act for another who undertakes to matter, himself, act also the other same for results advantage gained by profits all rule that' made agent agency belong of the to the the execution profit And not or principal. it matters whether such advantage performance be the result of the or of if duty agent, of the it be the fruit violation ’’ agency. see question For discussion relating to under cases S.) (N. notes A. R. 5 L. R. 924; 13 L. A. ' at analogous For a we are bar, case somewhat to the one by appellant' v. R. Comstock, cited to Trice Fed. Judge speaking 61 L. R. A. where Sanborn Appeals,'8th circuit, U. S. Court of said: Circuit reasons public policy, “For founded in a pro- knowledge found of the human intellect and of the inspire men, motives that per- actions of law emptorily every who, forbids one in a fiduciary rela- acquired tion, concerning has information or interest property in the or business his correlate from using prevent or interest to the latter from accomplishing the purpose the relation. If one *12 charges the law or this ignores prohibition, violates in this acquires which he property the interest or the party to of other way with a trust for the benefit the it while option latter, of the the at the relation, compensation or to the former all commission denies of law principle This inexorable the for his services. respective the upon, by, not based nor conditioned parties relation, to the the powers interests or terminates, or when that or time relation commences injury damage betrayal of the confi- the or which the upon It a founda- given dence entails. rests broader sagacious policy for the tion, upon public which, purpose removing possi- all all temptation, of removes bility may profit a from the sub- trustee derive ject-matter trust, of his so that one whose confidence may betrayed the has been enforce trust arises although no under this rule of law he has sustained although damage, the confidential relation has termi- betrayed, although nated he ha.d before trust was legal equitable property, in the and no or interest although acquired joint his correlate who it had no discretionary power only or interest' in over it. The good indispensible element of a of cause action to en- fiduciary force a trust are such relation parties use one to it of the or of acquired through prevent' interest he it to the other ’’ accomplishing purpose of the relation. 32 Fla. Cunningham, of Boswell v. In the case employed agents firm of real estate R. a So. agents purchase her certain Cunningham as by Mrs. purchasing of land for for her. Instead real estate purchased it one of them for himself and then client, their of it of conveyed one-half wife the other member Cunningham, firm. Mrs. client, then instituted all asking conveyance to her of suit for a release A agents acquired interests her had in the land. decree Court, in appeal in her favor, upon was rendered affirming lower signicant the decree court used this language: (the notifying
“That one them agents), before any (complainant) her upon part intention their *13 agency, consent, to terminate such and her without purchased property in they the his own that name employed buy were to for her, $100 and used of her money paying in for the there also same, is no dis- pute. facts being admitted, These applicable the law to them is well-settled, ap- and sustains the decree pealed from.” in
And the Court' support of proceeded its conclusions to state where the relation principal agent of and all subject matters in connection with the exists, employment good the utmost faith was of the exacted agent, during agent, continuation of the cannot put position himself in a agency, adverse to that principal, his and that' where employed purchase for principal purchased for all the himself, profits and ad- gained vantages in the belong transaction to the principal. just In cited, the case agents or one them, without notifying principal their of their intention to terminate agency her consent, without for agreed price acquired land. In the us, case agent before without notifying principal his of his intention quit, and with- out consent, (the his for agent’s) promise work, acquired a promise from Smith Brothers Construction Company pay (the him agent) for the agent work. The acquired both cases property rights; in one land, case and in the other a chose in 22 action. R. C. L. 43, It appellee is said solicitors all tbe authori- they had ties been able to find hold “that relation being principal agent must while the work is exist principal conducted before profit can claim agent’s efforts of his employment.” outside This state- ment broad. In the case of Trice v. Comstock, too interposed it was matter suit, defensive to the supra, agency had terminated that the before the confidence was referring and the court thereto said: violated, duty attorney “The anof client, to be true to his agent or of an to be faithful to his principal, does not ends, cease when employment and it cannot re- nounced at will the termination of the relation. It is as after sacred inviolable as before the ex- piration of its term.” Fogg,
See Carson v. Wash. text 76 Pac. R. 112; 1 Mechem on Agency, 2nd ed., 886.
We are constrained to hold that when entered *14 into contractual relations with the Smith Brothers Con- Company, struction he was in subject-matter relation to the duty Connelly contract bound the same upon him prior 9th; acquired devolved to June that he an duty, interest that conflicted with that and such interest employer, adverse to the was interest of his and even though employer might employee the relation of have undertaking been terminated not such within sphere legitimate competition. procured a contract He might just easily procured for himself that have been otherwise, provide employer. for his hold we would To faith strong employees to break incentive to confidential with, engage competition with in lines of business employers. their
It Cooper is insisted and wife that record dis- Cooper nothing closes that did employ while in the of Con- nelly, except plans to make for future employment after quit opinion he had such service. prin- It our that the ciple apply invoked does not to this case.
It is also contended that Connelly’s acqui- because of escence, estopped claiming any he is from part of the earn- ings resulting from the contract. recognize
We party, rule when a with full knowledge or with knowledge, sufficient notice or means of rights of his and all of facts, the material remains inactive for a considerable time party so that another is induced suppose that a transaction in he, party, such other is interested is recognized, estopped asserting will be from any rights may he had. have
The
proving
burden of
estoppel
upon
rests
party
in-
voking it. Horton v. Smith-Richardson
Co.,
Inv.
81 Fla.
905;
87 So. R.
Dekle,
Erwin v.
If telegram we concede that this was sufficient to cause average person suspect that a contract had been *15 made, notwithstanding this, agree we would have to Clifford, Mr. Justice when he stated in Goodman v. 61 U. Simonds, S. 15 L. Ed. text 940. suspicion and.
“There is wide difference between a knowledge subject-matter under con- respect to the ’’ sideration. employee a of Con- Then, too, Cooper had been trusted likely it that he would nelly for isn’t years, several the confidence betrayed had Cooper have that believed reposed him. Warntjers
However, had told Cooper testified that he testified that L. D. Moorman said and one contract, of the Cooper had Warntjers told him on the 12th of June state- modified this own, of his but witness contract he could not he said ment on his cross-examination when or whether said positive he said contract be “whether work of his.” some knowl-
Warntjers any had that the time he testified first the trial of the day was the before edge contract working know was cause; that he did not whether had by day it was. He said he no author- the or how also ity inquire Copper’s contract. into knowledge imputes principal rule applies only to agent or possessed notice received possessed re- knowledge is or notice where the cases authority. his scope within the agent' ceived Ed. Agency, 2d Meehem Warntjers had If it can said that Brothers Cooper and Smith Construction contract between time it is Company made, evidence about authority agent t'o that his was broad insufficient show impute Connelly, the knowl- enough principal, edge he, possessed. that Warntjers, remanded with
The case directions reversed had to accounting court to be ascertain the lower cause profit net' under contract between the earned Cooper; Company Brothers J. W. Smith Construction *16 it deduct therefrom the Cooper’s value of services from June 15th, completion contract, 1927, and that it then make and enter a conforming decree expressed the views opinion. this Reversed with directions. having Curiam. The record cause been con-
Per this foregoing opinion prepared sidered Court, Chapter 14553, under adopted by Acts of 1929, the Court opinion, its it is ordered and decreed considered, Court that the decree of the court below be and the same' hereby reversed and the cause remanded with directions accounting lower court cause an to be had to profit ascertain the net earned under the contract between the Smith Brothers Company Construction and J. W. Cooper; that it deduct Cooper’s therefrom the value of 15th, services June the completion of the contract and that it then make and enter a decree con- forming to expressed the views opinion Supreme Court. J.,C.
Terrell, and Whitfield, Strum, and Brown, J. concur. J., J., J.
Ellis dissent. Buford, joined by her husband, L. J. Lena Weadock, Weadock, City Appellants, v. a Corporation, Ap- Company, Bond pellee.
Special Division A.
Decision filed March 1930. rehearing Petition for May 28, denied notes exhaustive giving citations on each side of the 11 A. see question, 469; L. R. Ann. 1913 18 Cas. D. 218. See R. L. also, C. 508, 39 C. J. 71. facts in the before clearly case us show a fiduciary sustained or confidential relation to his em- Connelly, ployer, long so as the relation of employer and employee continued. question: We are now confronted with the Can Cooper, in employment while Connelly, with full employer wanted a his contract with Smith Brothers Company for Construction certain work, secretly nego- company with this for tiate such work for his own benefit, 466 n notifying his and without mind, in his own determine employment on quit his employer of his .intention though still company, this making a eve of contract earnings made enjoy profits or drawing his wages, of such contract? reason are in the facts not cited to a case which We have been diligent made We have to the facts of this case. similar have guide but authority point for us, search some finding not succeeded in one. must, therefore, For authority to sustain a decision we look to other sources. Agency says: work on Mr. Mechem his his may agent not deal the business “The duty principal for agency his own benefit. His his shall in the and for requires his efforts behalf principal. perform He the benefit his cannot constantly agency duty attempting if he is his use 1 purpose.” Mechem, Agency for his own generally The authorities sustain that statement. Swit Skiles, (Ill.) 529, zer 3 44 723; v. Gilman Am. Dec. Bunker Miles, 632; Davidson, v. 30 Me. 50 Am. Dec. Miller v. (Ill.), Gilman Am. Dec. 715. general “The rule that a chargeable servant is if, duty, breach of without the knowledge and master, engages consent of his in a transaction bring personal tends to interest into conflict obligations fiduciary agent. with his as a This rule has * * * applied (5) profits been Where he derives