Humphrey v. Robinson.

Walker, J., after stating tbe case. Tbe Court below was right in tbe opinion it expressed tbat tbe plaintiffs cannot recover in this action. We know of no legal or equitable principle upon which tbe plaintiffs can base their right to recover damages of tbe defendants. It is alleged tbat tbe defendant, Mrs. Kirby, owned certain notes which she wished to invest in real estate or with which she intended to purchase real estate as an investment, and she asked tbe plaintiffs to negotiate with some one in her behalf so tbat tbe notes could be thus invested. Tbe plaintiffs thereupon applied to Southerland for tbe purchase of tbe land described in tbe complaint and be authorized them to sell tbe land to Mrs. Kirby for $10,155 in notes, clear of all commissions, attorney’s fees and expenses. Tbe plaintiffs bad no authority to close tbe trade for either party except upon terms *436 agreeable to both, tbeir agency consisting merely in bringing the parties together so that they might consummate such a trade as they could be able to agree upon. We do not attach any importance to what is alleged in the seventh paragraph of the complaint, as we think Mrs. Kirby was not in any way bound, under the circumstances of the case, by what the defendant Robinson did. Souther-land had agreed to sell the land to Mrs. Kirby for $10,155 clear of commissions and other expenses, and Mrs. Kirby was entitled to have the land at this price. To compel her to comply with the terms of the contract alleged to have been made by the defendant Robinson for her, but without her knowledge and consent, would be virtually to make her pay the plaintiffs’ commissions in violation of the previous ex- pvess understanding and agreement. The plaintiffs were representing Mrs. Kirby, even if the defendant Robinson was also acting for her, and they knew that Southerland had agreed to sell at the-price of $10,155 clear of commissions and expenses. If the amount had been increased to $12,300 in order that the obligation to pay the commissions might fall on Mrs. Kirby, or if any material change had been made in the transaction, she was clearly entitled to a full disclosure of the facts, and the law will not hold her to be bound by a contract or agreement, so vitally affecting her interests, of which she had no notice and to which she did not assent. It was the duty of the plaintiffs as her agents to communicate to their principal all the facts known tó them and which were material to the transaction, and they will not be permitted to benefit either directly or indirectly by any dealing conducted in her name in which this was not done. The principal reposes trust and confidence in the agent, and the latter owes in return the duty to his principal of being faithful in all things, and he must at all times and in all circumstances put his principal's ad *437 vantage above his pwn. This relation involves the duty of carefully guarding the interests of the principal and reporting to him all material matters which may come to the agent’s knowledge. The principle is of universal application that an agent or trustee, undertaking a special business for another, cannot, on the subject of that trust, act for his benefit to the injury of the principal. Dodd v. Wakeman, 26 N. J. Eq., 484. We think it is well settled that a broker cannot recover his commissions, and certainly not damages in the place of them, if he has failed in any respect to make a full disclosure of the material facts to his principal, nor if the latter is prejudiced thereby. Lamb v. Baxter, 130 N. C., 67; Haffner v. Herron, 165 Ill., 242; Young v. Hughes, 32 N. J. Eq., 372; Wadsworth v. Adams, 138 U. S., 380; Phinney v. Hall, 101 Mich., 451; Halsey v. Monteiro, 92 Va., 581; Jansen v. Williams, 36 Neb., 869, 20 L. R. A., 201; Humphrey v. E. T. Co., 107 Mich., 163. The general principle established by the authorities cited is clearly applicable to our case and requires us to hold that the plaintiffs are not entitled to recover, for the reason that the defendant, Mrs. Kirby, was not informed of the change in the terms, nor did' she assent, in contemplation of the law or in fact, to the alleged contract. She now declines to accede to the alleged stipulations which the parties made for her without her knowledge, and it is clear if what was done by them had been communicated to her at the time she would -have rejected the proposed terms of the agreement. The plaintiffs had been authorized by Southerland, the owner of the land, to sell it to Mrs. Kirby at $10,155 to him, that is, free of commissions and the expenses as above stated. A new arrangement is attempted to be made by which she is required to pay the commissions, about twenty per cent, of the original purchase price. An agent cannot thus impose an obligation upon his principal in his *438 own favor, unless tbe principal is first made fully aware of all tbe facts and circumstances, and after consideration assents thereto. When we refer to a change having been made in the contract or in the terms of the contract, we mean to say that by the enhancement of the price to $12,300 Mrs. Kirby would virtually be required to pay the commissions, contrary to the spirit, if not the very letter, of the original agreement. The defendant also contended that as the contract between Southerland and Mrs. Kirby had not been reduced to writing, the latter could not be held liable to the plaintiff in damages for refusing to comply with the contract, assuming that one had been made between the parties. This presents a very interesting question and one, too, not free from difficulty. It is not necessary that we should decide it, as we have already disposed of the appeal upon the other point presented. We will add, though, that it was contemplated by the parties that they should agree upon the terms of their contract before any commissions should be due to the plaintiffs, which it appears that they have not done, and it was not the fault of the defendant, Mrs. Kirby, that they did not agree. There may have been some misunderstanding between the parties, but even in that case Mrs. Kirby would not be liable to the plaintiffs. The ruling below upon the allegations of the complaint and the admissions was right, and the judgment of nonsuit must stand. No Error.