6 N.C. 272 | N.C. | 1813
-delivered the ophvion'óf a majority of the- Coufi:
Fiúm this case it is evident thafthc D’cfehcíaht acted as agent or trustee for the Plainfi/T/ ai1d that it w’ás' the' understanding of the parties; h’6 whs to is ave iibiliirsg’foi' Isis trouble. ' It is equally clearthiat the ageist accounted for the Tobacco- at 19s. (under pretence’of having sbld for that price) and aftonvards sold for 24s. by which he' gained 5s. in each hundred weight. ‘ ‘
But it is'attempt'ed to be inferred from the statement that the Deftfmlailt was1 unable' to sell the Plaintiff’s To~ bacco for so’‘much as I9s. and with a view of obliging him, substituted one of his owri Hogsheads -that would1 command that price. Without enquiring, whether there bo sufficient -evidence-of fraud's if fhc conduct of the Defendant to óvéi;rule-t!ie verdíbt, wo' are of opinidn, -that it is not lit the pow£r!of an-agent to become a purchaser himself; nvithoist'leaving ifalso in-the-power of his principal to put an esid to the sale, (2 Brown Ch. Rep. 400, 430—5 Vesey jun. 680.) in the present case, tlse-l'laisi-ts :f has elected not to be bosiud' by the-exchange of the Tobacco,-which the Defendant in his'representative ella-
contra. — Itseems that the Plaintiff, ho-ing indebted, did on the 22nd March 1808,, (),oliven to the Defendant the Tobacco, in question, to he by him. sold, and the money arising- from the sale to he applied towards the discharge of his-.debts.. In, .tbq.eourse of a week after that time, the Defendant, attempted .to sell- the. Tobacco in the town of Petersburg. -.The price of Tobacco at that time, on the face of the note, as it is called (that is although it had passed inspection, but the quality unknown to the purchasers) was 18s. Now had Kimble sold the Tobacco for that price, ho blame could have beep attached to him. But his own Tobacco having been opened and looked at, commanded a better price. He therefore substituted.ibis in the ropm of it, and sold it for 1-Ss, and applied the money towards tire discharge of the. Plaintiff’s debts,as he had .agreed, to do. At what time indeed, docs not appear ; but there is no complaint on .that score. In the month following,.he stated when asked, that he had-sold Mealor’s Tobacco at 19s. Now, as.he. had not sold Mealor’s but his own Tobacco, avow" dlly a substitute for it, and that for a greater price than Mealor’s would have brought, and applied the money to Mealor's use, he thereby,' I think, made Mealor’s Tobacco bis own, and had it fallen in price afterwards, he must have-borne the loss. IiCt it be remembered, that there is no allegation or proof.of fraud in the, Defendant. Months after this time, when Mealor’s debts wercfpaid off, the Tobacco was sqld for 24s. on a credit of four or five months, and it is alledged that the Plaintiff is entitled to the difference between 19s. and 24s. ■ Had it sold fpr 4s. only, the-Defendant must have borne the loss..
But it is said a trustee shall not become a purchaser» and the case^ of (Fox v. Mockroth, 2 Brown Ch. Rep. 400, Forbes v. Ross, Ibid. 430—Whichcote v. Lawrence, 3 Vesey jun. 740, and Campbell v. Walker, 5. Vesey jun. 678,) are rplied upon. This position cannot be admitted except under certain limitations. I will examine it, but ■without believing that its solution is indispensable to a decision in the present case, forT can view no other per-nor? as the real púrchaserj but Ú. Johnstbn,
Ip the casé of Fox v, Mockroth, the trustee* who purchased, was decreed'still it» be a trustee, because he was guilty of á fráiid in taking an undue advantage of the: confidence reposed ip him. That case is founded in rea-gón and justice, and ought to be considered good authority, where a similar case shall occur. In thé pase of Forbes v. Boss, no fraud was' alledged against the1 trustee but through a misapprehension of his duty, he took niobey to himself at four pier cent, which the testator had directed to be laid Opt at the most that could, he got for it j giving as a reason for so doing, that the testator had loaned him money upon those terms during .fus life'. It appeared also, that the trustee wás a pian of large property? This is a short and certainly a very plain case ; for although there was no fraud pledged in the trustee, yet he became a gainer, and his cestui que trust, a loser by his conduct, and it matters not whether such conduct was induced by fraud or happened through ignorance. In the case of Whichcote v. Lawrence, the Chancellor observes, “ that it is not true as a naked position, that §
If then, Kimble was the purchaser of the Tobacco in question, that purchase is riot shaken by the principles bri which these cases profess to have been decided ; because he gained no profit to himself thereby, and instead óf a loss, a benefit accrued to (lie Plaintiff. It remains to beieen, what hearing the case of Campbell v. Walker, will have op this case. In that case, the master of the Rolls says, “there never was a rule that no trustee should buy,” but adds, that “ if they do purchase bona Jide,i they purchase subject to the equity, that if the cestui que trust come in a reasonable time, they may call to have the estate resold.” To examine this case by that pule, it must be kept in view, that Mealor, the Plaintiff was indebted to Cheek’s executors, which débt, as well, as the one due to Kimble, was to be discharged by the proceeds of the sale of the tobacco. This sale took, place on the 1st day of April, 1808, in consequence of which-those debts were promptly discharged. A month after-
it appears then, that a trustee may be a purchaser, and that his purchase will be protected., unless the cestui que trust apply within a reasonable, time after the notice, to have a re-sale. And according to this rule, if Kimble, became the purchaser of Mealor’s tobacco, by selling bis own in lieu of it, he ought to be protected in the purchase, It is not pretended that-the. sale was not honestly made, and for a full price 5 and it would have been