Eaton v. Littlefield

147 Mass. 122 | Mass. | 1888

Dbvens, J.

An agreement, arrangement,' or bargain by which a creditor of an insolvent debtor has received or is to receive any money, property, or consideration whatever, by which his vote for assignee may be affected, is illegal. The statute requires, using very ample and searching words for this purpose, that, in proving his claim, the creditor shall make oath that no such agreement, arrangement, or bargain exists, and, further, that no claim shall be allowed, unless these statements are found to be true. Pub. Sts. c. 157, § 29.

As the case at bar was submitted to the jury, they must have found that the agreement signed by the defendant was made upon the consideration that the plaintiff should vote for one John Warner for assignee of the firm of Rice, Jones, and Hammond, in case that firm should go into insolvency. By this agreement, which was under seal, the defendant guaranteed that the plaintiff should, within one year, receive ten per cent of his legal claims against Rice, Jones, and Hammond, and promised to pay him the difference between what he actually should receive within that time and this amount. Had this agreement been made directly between the plaintiff and the defendant, it would hardly have been contended, we presume, that it could be enforced. Tirrell v. Freeman, 139 Mass. 297. It was, however, made between the defendant and one Wood, also a creditor of the insolvent firm, acting on his own behalf and as the agent of the plaintiff. There was no evidence that the plaintiff ever knew of or ratified the transaction, except by receiving and bringing suit on the instrument signed by the defendant, and the plaintiff asked the court to rule that he was entitled to recover, because it was not shown that he authorized the illegal agreement. •

Where one as principal adopts the act of another, who has assumed to act as agent for him, he puts himself in the same position that he would occupy if he had originally invested the assumed agent with authority. As the act of the agent is treated as that of the principal, the latter cannot accept it so far as it is advantageous, and reject the infirmities attached to it or by which it may be affected. Suit v. Woodhall, 113 Mass. 391.

The plaintiff in the case at bar relies upon an agreement, the consideration of which was a contract made on his behalf by one assuming to act for him. He can do so only to the same extent that he might had he himself made the contract under similar circumstances. He is liable for the fraud or misrepresentations of his agent, or of him whom he accepts and recognizes as such, and should be affected by the consequences of the illegal acts of such agent when he seeks to avail himself of results which have been secured by means of them. He must accept or reject the transaction as it occurred, and is compelled to adopt the whole or none. Coolidge v. Smith, 129 Mass. 554. He is bound by the consequences which flow from the fact that an illegal contract was an element in the transaction, and tainted with illegality the subsequent promise founded on it, which he seeks to enforce.

The power of attorney which the plaintiff gave to Wood was properly excluded. There was no evidence that it was shown to the defendant, or that he had any knowledge of its contents. Nor, even if the defendant had known that Wood had no authority to make the illegal contract that the plaintiff should vote for Warner as assignee, would that render the contract made upon that consideration one that the plaintiff could enforce.

If we assume that the evidence as to the way in which the plaintiff actually voted for assignee was wrongfully admitted, it can have done no harm. The jury were told to disregard it as immaterial, and it must be held that they followed the instructions of the presiding judge.

Exceptions overruled.