37 Iowa 274 | Iowa | 1873
The only question controverted is as to the agency of the defendant. It is clear from the evidence that he was not an agent for the sale of the land in the full sense of the term; he could not make contracts for the sale of the land which would bind plaintiff, and render him liable for a refusal to complete the same by a conveyance. The plaintiff resided in Virginia. He owned six hundred and sixty acres of land in Warren county, which he had never seen. Moses Kelly, a banker of "Washington, D. C., was plaintiff’s agent for the sale of the land, having a power of attorney, with power of substitution.
Jones & Ashford, attorneys at law of "Washington, D. C., were the general attorneys of Kelly, and as such had supervision of the matters pertaining to these lands. T. W. Jones, of the firm of Jones & Ashford, made a visit to Iowa in 1866, at the instance of Kelly, and caused the taxes to be paid on the lands, redeeming such as had been sold for taxes. The first knowledge he had of the defendant,was from, his letter dated Indianola, July 4, 1867, which is as follows: “ Do you own, or are you agent for S. \ 9 — 75 — 25, in Warren county ¿ If you desire to sell any of said lands, if you will authorize me to do so, I can sell eighty or one hundred and sixty acres of it, if the price suits. If you will sell, send terms, price, etc.
To this letter Jones & Ashford answered that his services as agent for the care and sale of these lands might be wanted, and defendant replied of date of J uly 23, 1867, as follows :
To this, Jones & Ashford, on the 30th July, 1867, responded as follows:
“Yours of 23d inst. was received. The lands in Warren county, owned by our client, E. H. Ingle, are as follows:
* * * * -x- -* * yye pavej through Mr. Nourse, of Des Moines, paid all taxes on the lots, but would feel more assured if you would give us exact information as far as the record goes, taxes, etc. Should you have an offer to purchase, be good enough to inform us.”
Pursuant to this arrangement the defendant made contracts for the sale of portions of the land, and forwarded statements of his action to Jones & Ashford. Some of these sales were ratified by the plaintiff, and deeds were made pursuant thereto, and some of them were disapproved and the conveyances refused. Several letters were written by defendant asking that a price be placed upon the lands. In September, 1867, Jones & Ashford wrote as follows:
“ Inclosed find deed to A. Patterson, the remaining lands in your county and Monroe, will be sold at' $5 per acre, net — if all can be sold together, but Mr. Ingle says he will not consent to allow purchasers to select the choice lands and pay that amount per acre. If, however, the whole can be sold, he will -take $5 an acre, net. Should some sell for $6, he would sell the same amount for $4. The intention being that the whole shall average $5 per acre.”
On the 5th December, 1867, the same parties wrote as follows:
“ Your favor of 26th ult. was received. Send the deed for the N. E. ¿ N. E. J 26 — 76—24—with the draft on New York, amount for $201, and we will have the deed executed and transmitted.”
Plaintiff and his agent in Washington were ignorant of its location and value, and they had no other correspondent in Warren county than defendant. Whilst the proof does not show that the defendant was, in its fullest sense, an agent for the sale of the land, yet it does, we think, establish such a relation regarding it, as to require of him the utmost fairness and good faith in his dealings respecting it. Emptor emit, quam mini/mo potest; venditor vendÁt, quam máximo potest. And it is because of these conflicting inclinations, prompting the seller to get as much as he can, and the buyer to pay as little as possible, that, as a general rule, an agent cannot, so as to bind his principal, sell to himself.
Now, although defendant could not effect a sale which would be binding upon his principal until ratified by him, yet, in so far as defendant was agent, the plaintiff bargained for the exercise of his disinterested diligence, zeal and judgment. He had a right to expect that the agent would consult and endeavor to promote his interests, and not those of strangers or of the agent himself.
When contracts were sent for ratification, or proposals for acceptance, the plaintiff had a right to expect and to demand the unbiased judgment of the agent as to the propriety of accepting the offer, or ratifying.the agreement. And when he proposed himself to become the purchaser, and thus to place himself in a position in which his judgment might be biased by his interest, it became incumbent upon him to furnish exact and truthful information as to every thing affecting the value of the land.
This he did not do, knowing that the land was situated within one-fourth of a mile of the town of Indianola, a thriving county seat of one of the finest agricultural counties in the State, he
It seems to us that this contract, under the circumstances, is such a oné as a court of equity cannot uphold.
It is said, however, that Jones & Ashford had no authority to constitute defendant plaintiff’s agent. This may be true. And yet, in so far as his acts as agent were recognized and adopted, the relation of agent would exist.
After a careful examination and re-examination of the entire case our conviction is that the judgment of the court is wrong, and that it should be
Reversed.
