Central Land Co. v. Obenchain

Buchanan, J., delivered the opinion of the court. Where a verdict has been set aside and a new trial granted, sec. 3542 of the Code requires that the party to whom the new trial is granted shall, previous to such new trial, pay the costs of the former trial, unless the court shall enter of record that the new trial was granted because of the misconduct of the opposite party, and shall otherwise order. But if he fails to pay the costs on or before the next term after the new trial is granted, the court may, upon motion of the opposite party, set aside the order granting it and pi-oceed to judgment on the verdict, or award execution for such costs, as may seem to it best. If, however, the costs have not been paid as required, and the opposite party does not move the court to set aside the order granting the new trial, and render judgment upon the verdict, but proceeds with the new trial, he will not be heard afterwards to object in the trial court, or in an appellate court, that the costs of the former trial have not been paid. The record shows in this case that the defendant company moved the court to set aside the verdict and grant it a new trial, because the court erred in admitting and rejecting evidence, in giving and refusing instructions, and because the verdict was contrary to the law and the evidence. It also shows that the court overruled the motion, and that it excepted to the action of the court, and tendered its bill of ex [140] ceptions to such rulings of the court, as well as to other rulings made during the trial, which were signed, sealed, and made a part of the record. .All the bills of exceptions referred to in the order of the court, except the one based upon the action of the court in refusing to set aside the verdict and grant a new trial, are found in the record. This court, in the case of Newberry v. Williams, 89 Va. 298, held that, unless the record showed- that a motion was made for a new trial in the court below, and ivas overruled, and that such action was excepted to, this court could not review the judgment; but it did not, as the defendants in error insist, hold that a formal bill of exceptions should be taken to the action of the court in overruling the motion for a new trial. All that the rule requires is that the record shall show that such a motion was made and overruled, and that this action of the court was excepted to. In this case the judgment complained of shows that such motions were made, overruled, and excepted to. This was sufficient. Obenchain and Joliffe, the plaintiffs in the trial court, brought an action of assumpsit against the Central Land Company, of Buchanan, to recover $500. The ground upon which they based their right to recover this sum was that, as agents of one Felix and wife, they had sold to the defendant company a tract of laijd at the price of $10,000, for the sale of which Felix was to pay them 5 per cent, commissions; that the defendant company paid Felix the whole purchase price of the land, but afterwards collected from him their commissions, amounting to $500, and refused to pay the same over to them. The defendant company made defence upon the ground that when Obenchain and Joliffe became the agents of Felix, and acquired an option upon or the right to sell the land, they were engaged in promoting the organization of the defendant company, and getting control of that and other [141] lands, which were to be transferred, and conveyed to the defendant company when organized; that the company was afterwards organized, and the lands turned over to it; that Obenchain and Joliffe, along with E. Dillon and others, the special promoters of the company, were paid by the company after its organization for all their services in securing property for and in organizing the company, in accordance with the provisions of the prospectus under which the company was organized, viz. : “ But it is understood that there shall be allowed E. Dillon, for himself and associates who have secured the property, and have been instrumental in the organization of this project, a commission of 10 per cent, on the cost of the property purchased ; and that they shall have, in addition, the right to purchase at any time within three years, for themselves and others whose services may be considered important to the success of the company, four hundred shares of development stock above mentioned, at fifty cents in the dollar, which shall be reserved for them ; ” that Obenchain and Joliffe, prior to the institution of this suit, received from the company some $2,200 each, in full for their services in acquiring the property and in organizing the company, and that the $500 commissions on the Felix land, and for which the company was sued, belonged to it and not to Obenchain and Joliffe. Upon the trial of the cause the defendant company moved the court to give nine instructions, six of which, numbered 3, 5, 6, 7, 8, and 9, the court refused to give, and three of which, numbered 1, 2, and 4, it refused to give as offered, but gave them with amendments. It also gave two instructions asked for by the plaintiffs. To all of which rulings of the court the defendant company excepted. The defendant-company, by its instruction BTo. 3, asked the court to instruct the jury that the clause in the prospectus, “ It proposes to take and hold the properties desired, paying [142] therefor actual cost,” means that the Central Land Company, of Buchanan, was to pay for the lands the actual price paid for the land to the owners thereof, excluding therefrom all profits to promoters or middle-men. This construction correctly construed the clause in the prospectus referred to, and ought to have been given, though it would have been clearer if the words “ or middle-men ” had been omitted. Upon the next trial of the case, if this instruction is asked for, it should be given with the words “ or middle-men ” omitted. It will serve no good purpose to enter into a detailed discussion of the other instructions. We will content ourselves, therefore, with stating the principles of law which ought to control in the trial of the case. If the plaintiffs were not promoters of the defendant company when they entered into the contract made between them and Felix and wife, they were entitled to receive the commissions provided for in that contract. But if they were promoters of the defendant company, and engaged with others in obtaining control of lands for the purpose of organizing such company, when they entered into the contract with Felix and wife, then they stood in a fiduciary relation to the company, in whose interests and for whose organization they were working, and they were not entitled to the commissions provided for in their contract with Felix and wife, unless, with full knowledge of all the facts, the defendant company agreed that they might not only receive the commissions provided for in the prospectus, but also the commissions contracted for with Felix and wife. It is settled law that an agent employed to purchase or to sell, or to act in any other business, will not be permitted to make profits for himself out of the transaction, and that profits so derived enure to the benefit of the principal. And this rule of law applies equally to the promoters of a corporation who occupy, like agents, fiduciary relations to the new company. [143] It may be stated as a general principle that in all cases where a person is either actually or constructively an agent for another, all profits and advantages made or contracted for by him in the business, beyond the ordinary compensation to be paid him by his principal, are for the benefit of his principal. Story on Agency (8th ed.), sec. 211 ; 2 Pom. Eq. Jur., sec. 959 ; 1 Beach on Private Corp., sec. 237. These principles are specially applicable to corporations, which can only act by trustees or agents. The great number of corporations, the enormous amount of wealth invested in them, and placed under the control and managemént of agents and trustees, strongly demand of courts of justice a firm adherence to these principles, and a rigid application of them to every ease coming within their operation. Tested by these principles, the instructions given by the court ought not to have been given, and the defendant company’s instructions, numbered 2, 4, 7, and 8, which the court refused to give, ought to have been given. Upon the first trial of this case there was a verdict in favor of the plaintiffs, which was set aside upon motion of the defendant company, and a new trial granted, which resulted in the proceedings which we have been considering. The verdict rendered on the first trial was properly set aside (if not upon the grounds stated in the order setting it aside and granting a new trial, upon which we express no opinion) for erroneous rulings of the court in giving the plaintiffs’ instruction Hos. 1 and 2, and for refusing to give defendant company’s instructions ÍTos. 1 and 3. The judgment of the Circuit Court upon the last trial must be set aside, and a new trial awarded, to be had in accordance with this opinion. Reversed.