Albright v. The Phoenix Insurance Company

• Decision Date: 06 January 1906
• Docket Number: 14,424
• Citation: 72 Kan. 591,84 P. 383
• Parties: P. H. ALBRIGHT v. THE PHOENIX INSURANCE COMPANY, OF HARTFORD, CONNECTICUT
• Court: Kansas Supreme Court

84 P. 383

72 Kan. 591

P. H. ALBRIGHT v. THE PHOENIX INSURANCE COMPANY, OF HARTFORD, CONNECTICUT

No. 14,424

Supreme Court of Kansas

January 6, 1906

Decided January, 1906.

Error from Cowley district court; CARROLL L. SWARTS, judge.

Judgement affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

AGENCY--Profits Illegally Retained by an Agent. An agent will not be permitted to retain profits derived from the management of the subject-matter of his agency in violation of his duty as such agent.

Hackney & Lafferty, and G. H. Buckman, for plaintiff in error.

Fairchild & Lewis, for defendant in error.

GRAVES J. All the Justices concurring.

OPINION

GRAVES, J.

The defendant in error sued the plaintiff in error to recover money retained by him in violation of his duty as the agent of the insurance company. At the trial a demurrer to the evidence of the plaintiff was overruled, and the defendant assigns this ruling as error.

P. H. Albright, of Winfield, Kan., and G. W. Moore, of Hartford, Conn., with officers at each place, constitute the firms of P. H. Albright & Co., at Winfield, and G. W. Moore & Co., at Hartford. They do a general real-estate and loan business. These firms were the agents of the insurance company, and transacted its business in Cowley county for many years. The insurance company has its home office in Hartford, Conn., and loans its money on real estate. When borrowers failed to pay it was the practice of the company to foreclose its mortgages, and, if necessary, bid in the land and hold it until the debt could be realized therefrom. P. H. Albright & Co. managed this business for the insurance company, and for that purpose had Grant Stafford, an attorney at Winfield, to do their legal business. They also had a clerk employed in the office by the name of W. E. Brewster.

The loan out of which the present controversy arose was long past due, and a foreclosure had been taken, but execution was held back upon a partial payment of the judgment. Some years thereafter, in 1899, P. H. Albright & Co., in response to an inquiry by the insurance company about the loan, wrote a letter in which the history of their efforts to collect was given, closing with the following:

"Our judgment is that probably we would better close him out by selling the land, and upon taking title to the land hold it for disposition in the usual way. If you are of the opinion that further delay is not in line with the best interests of the company, advise this office and we will have order of sale issued."

The company then wrote a letter which contained the following:

"We, therefore, desire you to close the matter up as soon as possible, securing title, sending us the deed with other papers, together with the amount of expense incurred, and we will remit for same."

An order of sale was then issued, and the sale advertised to take place June 26, 1899. The insurance company was advised of this action by a letter in which was the following:

"Sheriff's sale coming off the 26th instant. The case of Julia I. Fay will be looked after in the usual way and bought in for the company, unless directed otherwise."

On June 21, five days before the sale, Albright & Co., through G. W. Moore & Co., made inquiry of the insurance company if it would take $ 2250 "in full settlement" of the case. The company, supposing that a settlement was being negotiated with the owner of the land, answered that it would accept $ 2350. On July 10, fourteen days after the sale, the company received a remittance of $ 2350, accompanied by the statement that it was "in settlement" of the case.

The owner of the land, being unable to save it by payment, tried to find a buyer who would pay more therefor than the debt against it. He had been informed by Albright's attorney who had the matter in charge, that...