136 Ill. App. 266 | Ill. App. Ct. | 1907
delivered the opinion of the court.
For a breach of the duty an agent owes to his principal, the action may be in assumpsit for the breach of the implied promise, or in case for the breach of the implied duty.
The letters written by defendant to plaintiff are such as an attorney for the plaintiff, entrusted by him with the colleetion or settlement of the Herst judgment, might he expected to write to his client. In them the defendant gives legal advice to the plaintiff, submits to him propositions of settlement received from Herst, and Herst’s answers to plaintiff’s offers of settlement. In their letters to Herst and to his attorney, the attorneys of the defendant, in charge of the legal department of the defendant, repeatedly speak of the plaintiff as their client, and their letters are such as they might be expected to write as the attorneys of the plaintiff. Why the letters of defendant to plaintiff should have been written in the name of the defendant and the letters of the defendant’s attorneys to Herst and his attorneys should have been written in the name of the attorneys of defendant, when all the letters were written by the same person and relate to the same subject, does not appear.
The defendant, a corporation, wus not, perhaps, the attorney of the plaintiff, but it maintained a law department and assumed, as the agent of the plaintiff, to take charge of the collection or settlement of his judgment against the ITersts. It cannot be heard to say, in the face of the evidence in this record, that it was a mere gratuitous agent of the plaintiff and liable to him only for gross negligence or wilful and malicious fraud. It owyed to him the duty to be loyal to its trust. It might not put itself into such relations that its interests became antagonistic to those of its principal.
Its authority was, w7e think, only to settle the judgment with the Hersts, hut if it be conceded that it had authority to sell the judgment to a third person, its position is not, by such concession, made stronger. It did not profess to act for itself in the purchase of the judgment. It undertook to settle the judgment for the plaintiff, or to sell the judgment for the plaintiff, and in either case, it was the agent of the plaintiff. An agent authorized to sell cannot, without the knowledge or consent of the principal, become the purchaser of the property he is authorized to sell. This principle is a rule of universal application to all persons coming within its principle w7hich is: that no person can be permitted to purchase an interest where he has a duty to perform inconsistent with the character of a purchaser. This principle applies not only to the agent, but to sub-agents, clerks or assistants employed by the agent. Mechem on Agency, section 463. It applies in this case to the purchase by Comstock, the secretary of the- defendant corporation. A corporation acts through its officers and agents, and where a corporation acts as agent it is the duty of its officers and agents to be loyal to the trust reposed in the corporation. Comstock formed the opinion from an examination of the correspondence in the possession of defendant that more than $300 might be obtained from the Ilersts. In place of communicating this opinion to the plaintiff, or openly making an offer to plaintiff to buy the judgment, he, the secretary of a corporation which was the agent of the plaintiff, proceeded secretly to secure from the plaintiff an assignment of the judgment to himself.
We think the plaintiff had the right, under the facts and circumstances shown by the evidence, when he learned that Comstock’s name had been filled in the assignment of the judgment as assignee, to repudiate the transaction, and he did repudiate it so soon as that fact came to his knowledge.
It was through the wrongful act, through a breach of duty on the part of the defendant, that plaintiff lost control, and Comstock obtained control of plaintiff’s judgment against the ITersts. Through such wrongful act of the defendant, Comstock obtained from the TIersts $1,300. The trial court permitted the defendant to deduct from that amount the costs and expenses, including attorneys’ fees paid by Com-stock, and for the balance, with interest, rendered judgment.
We think the judgment of the Circuit Court works out substantial justice between the parties, and that the record is free from reversible error.
The judgment of the Circuit Court will therefore be affirmed.
Affirmed.
