15 S.E.2d 727 | Ga. | 1941
The allegations of the petition failing to charge any act of fraud in the transaction complained of, and failing to show any fiduciary relation between the parties in reference thereto, the plaintiff failed to state a case which would entitle him to have a trust established in reference to the money paid by him to the defendant in satisfaction of promissory note previously executed by him. The action was properly dismissed on demurrer.
The theory on which the plaintiff would have decreed a trust as to the money paid by him to the defendant is that it was received in fraud of the plaintiff, and therefore was held by the defendant as trustee ex maleficio. The further claim is made that the defendant was the plaintiff's agent and stood in a fiduciary relationship to him as to all of the transactions outlined in the petition. We do not consider that fraud is alleged as to the transaction by which the defendant acquired the note involved, or its payment. The defendant was the owner of the stock which the plaintiff purchased. Its value may indeed have been questionable. It is alleged that the corporation had no assets except those in which the plaintiff had the beneficial ownership, although inferences could be drawn from other allegations which would tend to negative this statement. But in any event the stock represented the voting control of the corporation, which the plaintiff, according to his own allegations, was using "for convenience." He continued to use it, having then in his hand the lever by which it was controlled. There was no representation as to its value. The act of signing the note and acquiring the stock may have represented bad judgment — and indeed from the allegations it seems that the plaintiff made some bad trades all along; but no deception is suggested. He seems to have known the facts as well as the defendant; and except for the "persuasion" of the defendant that these transactions would be to his best interest, he seems to have acted voluntarily. Although the defendant was acting as agent for the plaintiff or the corporation in various ways, such as obtaining loans, marketing crops, etc., no fraud or improper conduct is charged to him in any of those transactions. The complaint relates solely to those transactions in which the two persons were trading with each other — as purchaser and seller. As to these transactions there is no suggestion that any *481 facts or information were withheld or any deception practiced, or that the agency relationship in reference to other matters was improperly taken advantage of by the defendant.
It is true, as contended, that "The relation of principal and agent is a fiduciary one, and the latter can not make advantage and profit for himself out of the relationship, or out of knowledge thus obtained, to the injury of his principal; and the agency being established, the agent will be held to be a trustee as to any profits, advantages, rights, or privileges under any contract made and obtained within the scope and by reason of such agency; and where the agent invests such profits in property or places the same to his credit in a bank, he will be held to hold the same as trustee for the principal, and the latter can maintain in a court of equity an action to trace such profits into such investments, and to enjoin the agent or his donee from selling, disposing of, or encumbering any such profits or any property in which the same have been invested. Civil Code (1910), §§ 3739, 3780; Forlaw v. Augusta Naval Stores Co.,
If the plaintiff could assert any rights growing out of the conduct complained of, they are not of a nature to be protected in equity as related to the doctrine of trusts; and if they existed on some other theory, as for money had and received or for recovery of personalty, or as in an action for fraud and deceit, they would be barred by the statute of limitations, which requires that such actions shall be brought within four years. Code, §§ 3-1003; 105-302. Thus, without reference to the statute of limitations, which might be applicable to a case in equity to establish a trust and recover its proceeds, no such case was here stated.
Judgment affirmed. All the Justices concur, except Grice, J.,disqualified. *482