Prouty v. Blanchard

Watson, C. J. The newly discovered evidence is very material to the rights of the parties. If believed it shows that, instead of Blanchard’s acting with the utmost good faith and loyalty for the furtherance and advancement of the interests of his principals, as the law of agency requires (Leno v. Stewart, 89 Vt. 286, 95 Atl. 539, Ann. Cas. 1917 A, 509), he, without the knowledge and consent of his principals, attempted, through indirect and deceitful means, to become the purchaser himself of the property which he had undertaken to sell, bargain, or exchange for them, as agent. When he attempted so to deal for himself his interests became antagonistic to those of his principals, and it was equivalent to a renunciation of the agency, (Carman v. Beach, 63 N. Y. 97; Wadsworth v. Adams, 138 U. S. 380, 11 Sup. Ct. 303, 34 L. ed. 984; Case v. Jennings, 17 Tex. 661; Christianson v. Mille Lacs Land & L. Co., 113 Minn. 120, 129 N. W. 150, 31 L. R. A. [N. S.] 536, Ann. Cas. 1912 A, 200,) and nothing short of a subsequent unequivocal recognition of the existence of the agency by the parties, with full knowledge on the part of the principals of the material facts constituting such renunciation, should be regarded as sufficient to establish it. [210] Carman v. Beach, cited above; Arnold v. Somers, 92 Vt. 512, 105 Atl. 260. It is urged in bebalf of the petitionee that his unfaithfulness and disloyalty, if such there were, in undertaking to become the purchaser of the farm, himself, were prior to his introduction of Bogue as a prospective purchaser regarding which there is no evidence of any misconduct in the performance of the duties of his agency; and consequently, as the latter was a transaction separate from the former, he is entitled to the commission claimed, citing the case of Taendstikfabrik v. Bruster, L. R. (1906), 2 Ch. Div. 671, as supporting this position. In that case the agent was not expected to sell the goods of his agency all to one customer, in one lot; but was expected to sell them in parts, as manufactured, to different customers at different times and at different places. It was held that such sales constituted severable transactions, and that in each instance where the agent acted honestly and within the terms of his contract he should be allowed the commission, but not in the instances where he acted improperly and dishonestly. We' may assume the conclusions there reached to be sound, and yet they have no significance in disposing of the present case where the farm which the agent undertook, through indirect and deceitful means, to get into his own hands as owner, was the same farm for which he later brought forward Bogue as a customer. It was an inseparable property,-regarding which, as before observed, Blanchard had previously renounced his agency. The material circumstances of the two cases are plainly different. It is said: (1) That the newly discovered evidence is cumulative; (2) that it would not be likely to produce a different result if a new trial be granted; and (3) that the petitioners do not show diligence in discovering the new evidence. None of these positions is well taken. The evidence is not cumulative. The question of an attempt by the agent, through fraudulent means, to-become the owner of the farm, himself, without the knowledge of his principals, was not raised at the former trial. It was there shown that he offered to give his commission to Cleary if he would advise Prouty to exchange properties with Ponton. But this, standing alone, was not evidence that in fact such trade, if made, was to be in the agent’s personal interest and for his benefit. We have already said enough to show the great materiality of the new evidence, and the reasonable prob [211] ability that it will produce a different result on another trial of the case. Concerning the diligence of the petitioners, the witness Ponton testifies that he never mentioned to anyone the attempted trade by which Blanchard undertook to become the owner of the Prouty farm until after the trial of the case of Blanchard v. Proutys; that he was not willing to tell about it be'.fore the trial, but after the trial, being informed that Cleary had testified that he was offered, by Blanchard, the commission which he was to receive in the transaction, as agent for the Proutys, if Cleary would persuade them to exchange their farm for Ponton’s house, he told what he knew about the matter of such exchange. The petitioners and their attorneys swear, in effect, that they had no knowledge thereof, nor of what Ponton knew concerning it; and petitioners ’ attorney who prepared and tried the case for them, states that before that trial, he, at the request of Mr. Prouty, interviewed Ponton for the purpose of finding out what, if anything, he knew of facts which would be material in defence of the case, but found out nothing. We think the petitioners exercised reasonable diligence in trying to ascertain what Ponton knew respecting the matters involved in the case, and that they were not at fault in not having the now newly discovered evidence for use at the trial. Judgment vacated, petition granted, and cause remanded for new trial.