McGar v. Adams

BBICKELL, O. J. — An agent who, for a reward, is employed in the transaction of business, will justly forfeit all right to compensation, if he is guilty of bad faith to the principal; and it would be grossly disloyal, if he is an agent to sell, for him to use the agency, and the trust and confidence reposed, to become, without the knowledge and consent of the principal, a purchaser, by a combination with others bidding for the property. If, in ignorance of the facts, the principal should make payment of the compensation, when informed of them, he may recover it back, as money paid under mistake of fact. — Whart. Agency, § 336. ' The difficulty, in the way Of appellant, lies not in the legal proposition, or the conclusions from it, which are intended to be embodied in the first charge requested, but that the charge is so framed, that without explanation it would have misled the jury. As requested, if it had been given, the jury could well have supposed, that the agent, Adams, could not, at any time, though the agency had ceased, and all its business fairly transacted and concluded, without suspicion have acquired any interest in the property sold; and that the acquisition of such interest, though it w‘as not contem [110] plated until the agency had terminated, would' authorize a recovery of the commissions ¡3aid. Eor that proposition, the counsel of the appellant would not contend. The second charge requested enumerates circumstances, found in the evidence, which the jury could-very properly have considered, in determining whether the fact was, that Adams was interested with Moses in the purchase of the store-house. It may be, these circumstances would not, in the estimation of the jury, have outweighed the positive evidence of the appellant’s own witnesses, disproving the fact that, at the time of the purchase, Adams had an interest in it, and proving that his interest was subsequently acquired, after the agency had terminated, and the purchase was fully consummated. Strong presumptions of indirection, and effort to evade the salutary principle forbidding an agent to stand in the conflicting relation of seller and purchaser, must arise when, so recently after the sale, he is found to have acquired, from the vendee, a beneficial interest in the property sold. The presumption, it is a duty the agent owes to himself, and the law exacts, to remove by clear and convincing evidence of the absence of all concert, or collusion, and of the fairness of the transaction. — James v. James, 55 Ala. 525. But, when these are removed by positive evidence, proceeding from the witnesses introduced against him, the demands of the law are satisfied. When there is conflicting evidence, or there is an absence of other than mere circumstantial evidence, to establish a material fact lying within the knowledge of a party, it may be a presumption can be indulged against him, if he fails to testify. We do not affirm that such presumption can or ought to be indulged — this case does not require it. But we do affirm that a presumption can not, and ought not, to be indulged against a party, who does not introduce and examine himself as a witness, merely to support the uncontradicted evidence, favorable to him, which his adversary introduces. Without subjecting himself to the imputation of withholding evidence, he may properly rely on that his adversary introduces, when it is without contradiction. The vice of this charge is, that it. affirms a contrary view. Let the judgment be affirmed.