Williams v. Bolling

| Va. | Mar 15, 1923

Lead Opinion

Sims, J.,

after making the foregoing statement, delivered the following opinion of the court:

The opinion of the learned judge of the court below so fully and accurately covers the material facts and the principles of law applicable thereto that that opinion (quoted above), is hereby adopted as a part of the opinion of this court. We shall add thereto merely the following observations upon certain points which have been especially urged upon our attention by the very able and earnest argument of counsel for appellees as having, in whole or in part, escaped the attention of the court below.

At the outset we will say that the cause has been fully presented and ably argued by counsel on both sides, which has greatly lightened the labor of the court.

There has been no difference between counsel as to the principles of law applicable, and it has not been claimed in argument before us that the principles announced in the opinion of the learned chancellor, which we have adopted as aforesaid, are not the principles to be applied in this cause. The main argument has centered around the controversy as to whether the letters of the appellants (the agents), especially of March 5, 1907, of January 15, 1909, the circular or prospectus sent therewith, and the letter of January 21, 1909, and the memorandum sent therewith (all dealt with in said opinion), were so clearly and unequivocally expressed on the subject that they in fact conveyed, or, when reasonably construed, must be taken to have conveyed to appellee (the principal) the information that the appellants proposed to sell and did sell to him their own mortgage bonds and the stock therewith.

On this point it is urged in argument for appellants that the court below overlooked any consideration of the aforesaid circular and also the postscript to the letter of January 15, 1909. The opinion expressly states that the circular “contains nothing to inform the (appellee) that they (the appellants) owned any of these bonds.” The postscript mentioned was as follows: “Let us hear from you promptly if you desire to avail yourself of this offer.” This, as we think, added nothing to the meaning of the letter itself of January 15, 1909, and hence mention of it in the opinion aforesaid was doubtless omitted as immaterial.

It is also urged in behalf of applicants that the court below overlooked any consideration of the following paragraph in the letter of January 21, 1909, from appellant to appellee, namely: “We have given you this participation in the bankers syndicate, as we feel that it is very safe and should bring you good profits during the next twelve months:” It is true that this paragraph of this letter is not quoted in the opinion of the court; but we think this omission was due to the fact that the court found nothing in this (as we find nothing in it) to change the meaning which the expressions in other portions of the letter were reasonably calculated to convey to the appellee, namely that the transaction was a purchase for him from some one else, with no information given, which can be said to be unequivocal, that it was a sale by appellants to appellee of securities belonging to them personally.

It is further urged in behalf of appellants that the appellee admits in his .testimony that, when his attention was first called, after the suit was instituted, to the exact phraseology of the memorandum, he saw that it said “sold you,” and “was utterly surprised;” from which it is urged that by appellee’s own admission the phraseology of the memorandum was sufficient to, and would, have conveyed to him the information in question if he had read the memorandum when he received it, and, hence, that it did not do so, was due to his own negligence in not reading it, or, if he read it, in not comprehending its meaning, at the time he received it, and not to the fault of appellants. We cannot so regard the matter. It is apparent from the evidence that, as a matter of fact, the memorandum did not convey the meaning in question to appellee until after the suit was brought, when his attention was for the first time attracted to the precise phraseology of “sold you” contained in it. In view of the fact that the letters were the source to which the appellee would naturally look for information which the appellants might have sought to convey to him on the subject of the transaction, rather than the memorandum, which he would naturally infer had reference to the same and not to a different transaction from that which was the subject of the mutual correspondence, we do not think that the contents of the memorandum, when reasonably construed along with the letters of the appellants and in the light of the other evidence disclosing the mental attitude of the appellee, can be said to have been such that it ought to have attracted the attention of the appellee at the time it was received, or prior to suit brought, in such a way as that it should have conveyed to him the aforesaid meaning which appellants claim it should have conveyed and which they thought that it and their letters did convey. As said in Cardozo v. Mid. Atl. Immigration Co., Inc., 116 Va. pp. 360-1, 82 S.E. 80" court="Va." date_filed="1914-06-11" href="https://app.midpage.ai/document/cardozo-v-middle-atlantic-immigration-co-6812976?utm_source=webapp" opinion_id="6812976">82 S. E. 80-87, included in the quotation from such case in the opinion of the court below: “It is not enough for the broker or agent to say he thought the principal was advised as to all the facts, nor is it sufficient if he be able to point out circumstances from which an inference might be drawn that the principal knew or had means of knowledge.” For the communication from the agent to be held to convey by inference the information in question in such case, the inference must be so obvious that it is apparent that the principal “willfully shut his eyes to what he might readily and ought to have known.” See Pence v. Langdon, 99 U. S. 578, 25 L. Ed. 420; in which the communications from the agent contained language more strongly warranting the inference in question than in the instant case.

It is further urged before us for appellants that consideration was not given by the court below to the fact that the memorandum aforesaid showed that no commission was charged on the purchase of the mortgage bonds and stock therewith, which should, as it is claimed, have informed appellee that it was not a purchase for him, as he supposed, but a sale to him by appellants personally. We do not think that it can be said that appellee should have reasonably expected that such a memorandum would set out the commissions charged if it had been a purchase for him, and that the inference must be drawn, from its not stating any commissions as charged, that it conveyed the information aforesaid. He would naturally expect the information as to commissions charged or not charged to appear in a different character of document, such as an account rendered by appellants.

But one other matter in controversy need be specifically referred to by us. It is earnestly urged for appellants that the court below erred in allowing the appellee to recover beyond the market value of the sixty-five shares of the Atlantic Coast Line stock on the day of the sale of the thirty-five shares of such stock. The authority of the court for this" allowance is found in the settled rule which is thus stated in 1 Mechem on Agency, sec. 1224, pp. 894-5: “The well settled and salutary principle that a person who undertakes to act for another shall not, in the same matter, act for himself, results also in the other rule, that all profits made and advantage gained by the agent in the execution of the agency belong to the principal. And it matters not whether such profit or advantage be the result of the performance or the violation of the duty of the agent if it be the fruit of the agency.”

In the case of Wagner v. Peterson, 83 Pa. St. 238, cited for appellants, the question involved was merely whether the principal could recover of the agent broker certain extra commissions charged by the latter, which he had had to pay other brokers. The court held that it should have been left to the jury to say whether the principal had promised to repay the broker the extra commissions. And in that case there was an account of sales rendered by the agent broker to the principal, which showed that the broker had fully accounted for his actual receipts from the actual sales of the stock. The case is therefore not in point.

We will add in conclusion (what we feel that the long years of upright, honest and fair dealing of the appellants’ firm, shown by the evidence, justly entitles them to have the court make), the following statement: It is not even alleged by the appellee, nor is there any evidence whatever in the cause; that the appellants acted in any other manner throughout the whole course of their dealing with appellee, including the transaction aforesaid involved in this cause, than in the most scrupulously honest and upright manner, in so far as their intention was concerned. They risked for themselves, and, at the time of the suit, had still invested many hundreds of thousands of dollars in the same mortgage bonds and stocks as those which they sold to the appellee; and they, in good faith, thought that they had made it plain to the appellee at the time of such sale that they were making such sale to him from their own holdings of such securities. But, for the reason of public policy set forth in the opinion of the court below, which we have adopted as aforesaid as a part of this opinion, we feel constrained to adhere to the established rule on the subject, which is also set forth in such opinion, the importance of which, as a matter of public policy, is so great, that it transcends in importance and supersedes all consideration of any individual interests involved in any particular case in which it does not affirmatively appear that the agent has in fact made the disclosure aforesaid to his principal which the rule .as aforesaid requires.

The decree under review will be affirmed.

Affirmed.

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Rehearing

On Rehearing.

Richmond, Va., January 17, 1924.

Per Chriam:

This case is before us upon a rehearing. The former opinion, delivered by Judge Sims, was handed down March 15, 1923.

We have carefully considered the oral arguments and written briefs submitted upon the rehearing, and notwithstanding the apparent hardship of the case, a majority of the court is satisfied that no other conclusion can be reached than that stated in the original opinion without serious impairment of the important principle upon which that opinion was based. The decision as formerly announced is, therefore, adhered to now.

Affirmed.

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Dissenting Opinion

Prentis, J.,

dissenting:

I dissent, not from the salutary principles upon which the majority opinion is based, but because I do not think they should be applied tó the facts of this case.