38 N.Y.S. 749 | N.Y. App. Div. | 1896
The action is brought by the plaintiff to recover a commission which the defendants agreed to pay plaintiff for his services in negotiating charters of the steamers Nicaragua, Condor and George Dumois, of two and one-half per cent on the amount of tho charter hire agreed to he paid. The answer demurred to alleges that at the time of the agreement in question the plaintiff Avas an employee of a corporation under a stated and regular compensation ; that as such employee he was sent to the United States to negotiate and execute charters of the three steamers named in the complaint, and that he had from said corporation a power of attorney authorizing him to negotiate and execute such charters,
By his demurrer the plaintiff admits that ho, as the agent of the corporation owning these steamships, sent here to negotiate and execute charters of the steamships, made a contract with the defendants whereby the defendants were to pay him a commission for making a contract between his employers and principals and the defendants. The demurrer was overruled by the court below on the ground that such contract was void and one that the court could not enforce.
The question here presented is, not as to the validity of the charter made by .the plaintiff as agent for his principal, but whether an independent .contract made between the plaintiff and a third party with whom .the plaintiff is negotiating on behalf of his principal, whereby upon .the execution of such contract plaintiff is individually to receive a .sum of money from such third party, is a contract which the .courts will enforce in an action between the agent individually .and such third party. “It is a well-settled and salutary rule that ' a person who undertakes to act for another in any matter .shall not, in the same matter, act for himself.’ It is only by a rigid adherence to this simple rule that all temptation can be removed from one acting in a fiduciary capacity to abuse his trust, or seek his own advantage in the position which it affords him. * * * The rule which places it beyond the power of the agent to profit by such transactions is founded upon considerations of policy, and is intended not merely to afford a remedy for discovered frauds, but to reach those which may be concealed, and also to prevent them, by removing from agents and trustees all inducement to attempt dealing for their own benefit in matters which they have undertaken for others,, or to which their agency or trust relates.” (Dutton v. Willner, 52 N. Y. 318.) It is entirely immaterial, in considering the validity of such a contract, as to whether or not the agent made the best contract that he could for his principal. The
That such a contract as the one in question comes within this-class is clear. The case of Bollman v. Loomis (41 Conn. 581) is in point. . There the plaintiff, acting for a Mrs. Robinson, went to the defendant with Mrs. Robinson to purchase a piano. The defendant,, knowing his relation, requested plaintiff to endeavor to effect a sale, and to urge the piano upon the Robinsons. This the plaintiff promised to do, and did, and a sale was effected. Neither of the Robinsons, at any time, knew that the plaintiff was acting for the defendant, and after the sale the plaintiff recovered & judgment for his services against the defendant. The court held that a contract by the defendant to pay plaintiff for his services in inducing the Robinsons to purchase was void, and that the plaintiff could not recover.
In the case of Bell v. McConnell (37 Ohio St. 399) it is said : “ It is equally clear, both upon principle and authority, that in case
The judgment was clearly right and should be affirmed, with costs, with leave to the plaintiff to withdraw the demurrer upon payment of costs in this court and in the court below.
Van Brunt, P. J., Rumsey, Williams, and O’Brien, JJ., concurred.
Judgment affirmed, with costs, and with leave to plaintiff to withdraw demurrer upon payment of costs in this court and in the court below.