Gallup v. Merrill

The opinion of the court was delivered by Prout, J. The defendant claims in this case-upon the facts, that the plaintiff was his agent in the purchase of the sheep he received upon a division of the entire lot the defendant drove to Charleston ; and that inasmuch as the plaintiff refused to render the defendant such an account as he required with respect to his purchases, expenses and disbursements in his employment, this action cannot be maintained. Conceding, that the relation between the parties with respect to that dealing was not that of debtor and creditor in the oz’dinazy sense, but that of pzdncipal and agent, what effect is the refusal to render such an account to have upon the rights of the parties as involved in this action, and growing out of that supposed relation ? The action is on book, and independent of the objection made, it is not disputed but that the claims existing between the parties, and [137] arising out of the plaintiff’s employment to purchase sheep for the defendant, and partially with his funds, can be adjudicated in this form of action. It has been held by this court, that where articles have been left with an agent for sale, they may, when sold, be charged on book against the agent, and a recovery had therefor. Hall et al. v. Peck et al., 10 Vt. 474. This action, however, involves other items of account, about which no question arises. As to the duty of an agent, while acting for and on behalf of his principal, there can be no doubt. When the character and nature of the business in which he is employed requires it, he should keep full, accurate and regular accounts of all his transactions — of his payments and disbursements — and should render, at all proper times, an account thereof to his principal, “ without suppression, concealment, or overcharge.” This duty is incident to the relation, and arises from the nature of his employment. Ordinarily, if the agent omits his duty in this particular, in a court of justics a presumption arises against him. If his liability is in respect to sales of property, he may be presumed to have received the money therefor. The omis* sion or neglect may involve a loss of interest on advances, or result in a liability to pay his principal any damages he may sustain thereby. And possibly, as in the case of a factor who sells merchandise for another, an implied promise exists to render an account when called upon for that purpose, and on refusal or unreasonable delay to do so, an action might be sustained for a breach of this implied promise. But it by no means follows that an agent upon the facts of this case could not maintain an action against his principal to recover a conceded balance due him growing out of the business of his agency. The report of the auditor shows that the plaintiff exhibited to the defendant a bill of the sheep purchased upon which he had the number and amount in figures, and claimed of the defendant five dollars and five cents per head as their cost, including his time and expenses. This was not sufficiently specific to satisfy the defendant. ■ He required a bill particularly specifying the names of the men of whom the plaintiff bought the sheep, the cost per head of each lot purchased, and virtually refused to pay the plaintiff until such a bill was rendered. If he had a right to require such an account, [138] neglect of the plaintiff to render it could only affect the plaintiff unfavorably as a matter of evidence before the auditor, who, no doubt, gave the fact its proper effect, and took due care that the defendant did not suffer thereby. Walker v. Norton, 29 Vt. 229. The auditor finds the actual cost of the sheep to be $4.75[70. per head. He arrives at this result by allowing the plaintiff fifty dollars paid for expenses, and three dollars per day for nine days on his first trip to Franklin county in looking for sheep with a view of buying. This expense, &c., accrued before the defendant employed the plaintiff to buy for him. Upon these facts those items should have been disallowed. Judgment of the county court reversed, and judgment on the report for the plaintiff for $175.99., with interest thereon from November 13 th, 1865.