Messer-Moore Insurance & Real Estate Co. v. Trotwood Park Land Co.

McCLELLAN, J. This cause of action, set forth in counts for money clue on an account, or an account stated, and for money received by defendants to' plaintiff’s (appellee’s) use, proceeds, as appears from the evidence, on the theory that the Messer-Moore Insurance & Beal Estate Company, a corporation, of which the other defendant, Messer, was the president and active representative in sales of real estate, secured in breach of good faith, and loyalty, a profit in a transaction for the sales of a part of plaintiff’s “Trotwood Park” property while acting as the agent of plaintiff in the sale of said property. The theory and form of the action are good. —31 Cyc. 1434 et seq., 1608, 1609, and notes thereon. A breach of duty and obligation created by the relation of confidence existing between principal and agent is ■ involved, and, if the agent acquires profits, advantages, etc., during the existence of the relation, he may be held as a trustee and compelled to account or surrender in accordance with the law’s requirements in such cases. There are only two questions, based on proper assignments, argued here. There was severance, both defendants having appealed. The corporation complains that no relation of agency was shown to exist with reference to the sale — transaction—out of which the alleged breach of good faith and loyalty grew. The court below, determining the issues of fact without a jury, resolved that issue against the appellant corporation. Subsequently, in disposing of the motion for new trial, the court again declined to adopt the stated insistence of nonagency. It will serve no usful purpose to attempt a discussion of the evidence on this matter of agency vel non. All of it has been carefully read and considered, and, after this, this court is not convinced that the trial [476] court erroneously concluded. There was evidence tending to show the agency of the corporation in accord with plaintiffs theory of right to recover. Besides, there was also evidence tending to establish a want of candor, good faith and loyalty in respect of the “option” secured from plaintiff by the defendant corporation, through its president. That that means was employed to obscure and conceal the real purpose entertained also finds support in tendencies of the evidence. The correctness of the conclusion below, in that particular, cannot be here disputed without ignoring evidence well calculated to lead the trial court to the opinion entertained by it. The only other point of attack on the correctness of the judgment rendered is that there was an entire want of evidence tending to show that Messer individually ever had, in possession, the profit sought to be recovered, or, if so, that it was shown that he had paid it to the corporation; and that error affects the whole judgment in consequence of the failure to show a liability on Messer, the individual sued. In support of this contention a number of our cases are cited and may be found on briefs for both appellants. Further, on the authority of Eufaula, Grocery Co. v. Mo. National Bank, 118 Ala. 408, 24 South. 389, it is urged, to state it quite generally, that the plaintiff, a principal, was bound to an election to hold the principal of Messer’s agency, viz., the corporation or Mes-ser, that corporation’s agent, and that an election to hold one renounced all remedy against the other. Assuming plaintiff’s theory to have been sustained in the finding of fact, it is quite clear that the bad faith, toward plaintiff, characterizing the acts of the Messer-Moore Company were committed through and by Mes-ser alone. He managed the whole affair. He was, for' [477] all practical purposes, tbe agent of the Messer-Moore Company, and there is no denial of bis authorization in the premises. The active promoter of the breach of good faith, why may he not he held responsible, jointly with the Messer-Moore Company, for the profits retained from plaintiff at the expense of good faith and delivered by him to the Messer-Moore Company? Messer, acting for the company, received the money or its equivalent, knowing that the excess over $18,000, less the $250 already paid, and fair compensation to the Messer-Moore Company for its services in the premises, should have been paid over to the plaintiff. Can he claim exemption from his intimate participation in the bad faith charged on the ground that he has none of the money? If so, his own acts, through and by which alone his company touched the transaction and thereby increased its income, would be the exoneration from joint liability to restore that, in breach of good faith, retained. There is no basis for holding Messer innocent after he had placed the fund, in excess, to the company’s credit. His attitude, exhibiting in fact, that by his company, was that the excess belonged to his company. He denied its agency in the transaction when subsequently dealing with plaintiff, though affirming that agency, some of the evidence shows, when negotiating the sale to Dabb. To now permit him, on this theory of proof, to avoid joint responsibility for a breach of the obligation of a confidential relation, a wrong wrought by him for and in the name of his codefendant, on the ground that he had none of the fruits of the wrong would be palpably unjustifiable. His acts deprive plaintiff of the excess claimed, and he cannot exonerate himself from liability by the fact that the company of which he was the executive head, and, in this instance, its sole voice and instrument, has the fund that in equity and good con [478] science belongs to plaintiff. No line can be drawn between them. They are interwoven in wrongful act and benefit therefrom." In Eufaula Grocery Co. v. Mo. National Bank, supra, the question was one of agency, purely, wholly free from any such bad faith as that which the testimony here tends, in some aspect, to color the transaction involved. The doctrine of election announced in that decision had no factor of bad faith to influence the conclusion. The judgment is affirmed. Dowdell, C. J., and Simpson and Mayfield, JJ., concur.