Union Refining & Storing Co. v. Pentecost

Mr. Justice Williams delivered the opinion of the court, January 6th 1876. 'It is difficult to-perceive on what principle of law or morals the plaintiff was allowed to recover the full amount off the bills for advertising the defendants’ property. They were made out at card rates and settled, as the evidence shows, at a discount of about 25 per cent. Whether the discount was allowed under a general arrangement, embracing all the advertising ordered by the plaintiff in the course of his business as auctioneer, or under a special agreement, including only the advertising done for the defendants, is wholly immaterial. In either case, it constituted no part of the expense of advertising, and the plaintiff had no right to treat it as so much money paid, and recover it of the defendants. All that he can justly claim under his contract with the defendants is the amount which he paid for advertising. But apart from the contract, the plaintiff had no right to recover the amount of the bills. He was the defendants’ agent, and it was his duty to precure the advertising on the. best terms he could, for the benefit of the defendants. He could not contract for the advertising at card rates as the defendants’ agent, and settle the bills at a discount for his own benefit. Such a transaction would be in direct violation of his duty as agent, and a gross fraud on the defendants. In no aspect of the case is the plaintiff entitled to recover more than he paid for the advertising; and it needs no argument to show that under the common counts all that he can recover is the amount actually paid at time suit was brought. It follows that the court below erred in refusing to charge as requested in defendants’ second and third points. Judgment reversed and venire facias. de novo awarded.