McMillan v. . Arthur

Rugee, Oh. J. The complaint in this action seems to have been framed upon the theory that the rule of damages in an action by a principal against an agent, who had defrauded him in purchasing property, by representing that he paid a larger price than it was actually obtained for, was upon an offer to surrender the property to the agent, its whole purchase-price. We think this theory is erroneous. The contract of purchase made with Hyde, the vendor of the stock, was precisely the contract which the plaintiff authorized his agent to make, and the principal could not, therefore, rescind that contract by reason of any fraud perpetrated upon him by his own agent, to which the vendor was not a party. Upon the execution of that contract the title to the stock vested in the plaintiff, and there is no principle of law upon which he could compel the agent to assume its ownership and stand the hazard of the speculation. In an action by the purchaser against the agent for such fraud the rule of damages would be those only which he actually suffered from the fraud. This would not necessarily or probably be the price paid for the stock. Hot only, therefore, was the theory of the complaint erroneous, but the evidence and the findings of .the court below show *170 that the defendant was not the agent of the plaintiff, but even if he should be so considered, that no fraud was committed by him, except in abusing the confidence of his employer by paying a larger price for the stock bought than it apparently could have been purchased for. If upon the facts found by the referee such a construction could be put upon them as would make the defendant the agent of the plaintiff, a recovery could have been sustained only for the enhanced price paid by the agent over what the stock could have been purchased for by him, or at least for the amount allowed by the vendor to the agent for his services in effecting the sale ; but this ground of recovery was not only contrary to the theory of the action stated in the complaint, but was expressly disclaimed by the appellant on the trial of the case, as well as on the argument, before us. The only possible theory in the case upon which the plaintiff could recover having been disclaimed by him, no alternative is left us but to affirm the judgment. All concur. Judgment affirmed.