Colt v. Clapp

Ames, J. It appears from the bill of exceptions, and from the finding of the judge, that the defendant was employed to make the purchase in question on behalf, and for the joint benefit, of the four heirs of the deceased, he being one of the four; and that he accepted this agency. The understanding was that the other heirs were to contribute their respective proportions, and the matter was afterwards to be adjusted between the parties. The defendant then received the conveyance, and immediately after found it necessary to go to California, where he had business. Upon his return, after an absence of three and a half months, he notified his co-heirs, on being called upon to make the final adjustment, that on the whole he had concluded to keep the property himself. It hardly need be said, that in this proceeding he acted under a decided misapprehension of his rights and duties under the law of agency. Story on Agency, § 212, and cases cited. It appears also that he has received in dividends upon the stock in question an amount, in less than two years, of considerably more than double the price which he advanced in making the purchase. The only question in the case, therefore, is whether the remedy for this breach of faith can properly be sought in an action for money had and received. What he undertook to purchase, on the joint account of the heirs, from the widow of the testator, and what she in fact conveyed to him, was her right from time to time, so long as she should live, to receive any and all dividends which during that time should accrue or be declared upon the nineteen shares which the will of the testator had directed to be held in trust for her for that purpose. 480 Under that conveyance, he has collected, in two of those dividends, a large sum of money, which he has undertaken to appropriate to his own exclusive use. But this, as we have seen, he cannot lawfully do; and having as an agent for others been employed to make the purchase, he, by undertaking to purchase for himself, must be considered as a trustee for his principals severally. It is contended by the plaintiffs, and appears to be conceded by the defendant, that the case is not one of a resulting trust in its technical sense, nor is it one of that class of trusts which can only be enforced by proceeding in equity. It was an express agreement, upon good consideration and lawful in itself, that he would purchase the widow’s interest in these expected dividends, for and on account of the plaintiffs and himself, each to have one fourth of whatever should thereby be realized. Of the money which has thus come to his hands, one fourth part is properly his own, and he is accountable for the remainder to the three plaintiffs each in a like proportion. Each of these plaintiffs has a right to say that the defendant has money in his hands for which ex cequo et bona he can be charged in these actions. It is difficult to see any legal or equitable ground that he can have for retaining it. . In this case there was an express- agreement, and the objection of want of privity is without foundation. Brigham, v. Eveleth, 9 Mass. 538. Stiles v. Campbell, 11 Mass. 321. Hall v. Marston, 17 Mass. 575. Brinley v. Kupfer, 6 Pick. 179. Fanning v. Chadwick, 3 Pick. 420. Hills v. Bearse, 9 Allen, 403. As to the objection founded upon the statute of frauds, Gen. Sts. c. 105, § 5, that section is applicable only to the contract between seller and buyer, and not to the case of the liability of an agent, for making a purchase, to his principal and employer. Section 6 of the same statute was intended to prevent that form of stock-jobbing, in which a person owning no shares and having no authority from any one undertakes to sell as if he were an owner. This is an entirely different case, and one to which that statute has no application. Exceptions overruled.