144 N.Y.S. 982 | N.Y. App. Div. | 1913
Plaintiff sues to recover the sum of $29,376.10 as the balance of the commission to which it claims to be entitled under the terms of a written agreement between the defendant and the E. I. du Pont de Nemours Powder Company, whereby the commission to be paid to plaintiff by defendant (which latter had employed the former as its broker to negotiate the sale of the muriate of potash covered by the agreement) was fixed at two dollars and twenty-five cents per ton.
“ XV. That the concealment by the plaintiff and said Heller,
We are of the opinion that these facts established a defense to the cause of action set forth herein. Plaintiff alleges that it was acting as a broker, employed by defendant and that it procured for defendant the contract in question.
Its duties to its principal were as laid down by Chief Judge Ruger in Murray v. Beard (102 N. Y. 505): “We think the judgment was properly ordered on that ground, and that it can also be sustained upon the ground of fraudulent suppression of material facts by the plaintiff in making the contract, as well as that it was contra bonos mores. * * * An agent is held to uberrima fides in his dealings with his principal, and if he acts adversely to his employer in any part of the transaction, or omits to disclose any interest which would naturally influence Ms conduct in dealing with the subject of the employment, it amounts to such a fraud upon the principal, as to forfeit any right to compensation for services. (Story on Agency, §§ 31, 334; Story’s Eq. Jur. § 315; Ewell’s Evans on Agency, 268; Dunlap Paley on Agency, 105, 106; Carman v. Beach, 63 N. Y. 97, 100.) ”
In the recent case of Dickinson v. Tysen (209 N. Y. 395) the Court of Appeals emphasized the duty of brokers to act “ fairly, honestly, and in good faith” toward their principal.
The order appealed from will, therefore, be reversed, with ten dollars costs and disbursements, and the demurrer to the separate defense overruled, with costs.
Ingraham, P. J., Clarke, Scott and Hotchkiss, JJ., concurred.
Order reversed, with ten dollars costs and disbursements, motion denied and demurrer overruled, with ten dollars costs.