Atlee v. Fink

• Decision Date: 31 October 1881
• Citation: 75 Mo. 100
• Parties: ATLEE et al., Appellants, v. FINK.
• Court: Missouri Supreme Court

75 Mo. 100

ATLEE et al., Appellants,

v.FINK.

Supreme Court of Missouri.

October Term, 1881.

Appeal from Jackson Circuit Court.--HON. S. H. WOODSON, Judge.

REVERSED.

Tomlinson & Ross for appellants.

O'Sullivan had no power to appoint a sub-agent at the expense of the plaintiffs. Story on Agency, (6 Ed.) § 387, and note; Ib., §§ 13, 14, 15; 2 Kent Com., (12 Ed.) side p. 633, sub-div. 9, and note; Paddock v. Colby, 18 Vt. 485; Solly v. Rathbone, 2 Maule & Selw. 299, et seq; Warner v. Martin, 11 How. 209; Cronkite v. Wells, 32 N. Y. 247. The policy of the law forbids that O'Sullivan, acting as the servant and confidential adviser of the purchasers, should, at the same time, be secretly receiving a compensation from the seller for effecting the sales, and a contract for such compensation is void even if no actual fraud is perpetrated on the purchaser. Bollman v. Loomis, 41 Conn. 581; s. c., 15 Am. L. Reg. 75; Spinks v. Davis, 32 Miss. 152; Fuller v. Dame, 18 Pick. 472; Wyburd v. Stanton, 4 Esp. 179; Jacques v. Edgell, 40 Mo. 76; Kanada v. North, 14 Mo. 615; Lingle v. Ins. Co., 45 Mo. 109; Tool Co. v. Norris, 2 Wall. 45; Fireman's Char. Ass'n v. Berghaus, 13 La. Ann. 209; Story on Agency, §§ 31, 210, 212, 214, 330, 344; Wharton on Agency, §§ 244, 573, 715, 716; Oscanyan v. Winchester Arms Co., 17 Am. L. Reg. 626; Harrington v. Victoria Dock Co., 7 Reporter 32; Morison v. Thompson, L. R., 9 Q. B. 480; Bartle v. Nut, 4 Pet. 184; Reynolds v. Nichols, 12 Iowa 398; Walker v. Osgood, 98 Mass. 348; Roby v. West, 4 N. H. 285; 3 Cent. L. J. 263; 3 Wait's Actions & Def., (Ed. 1878) 586, 587, 589; Childress v. Cutter, 16 Mo. 24; Dunlop v. Richards, 2 E. D. Smith 181; Farnsworth v. Hemmer, 1 Allen 494; Pugsley v. Murray, 4 E. D. Smith 245.

J. D. S. Cook for respondent.

The contract was not inconsistent with Fink's duties as superintendent of the buildings upon which he was employed. If he had been employed to buy lumber, he would have no right to a commission from the seller, even if he got it at the lowest market price. But he was not so employed. His only duty was to certify the bills. His employers bought the lumber, fixing both the quality and price, and his certificate simply showed that the quantities called for by the bills had been delivered.

HENRY, J.

Plaintiffs sued defendant for balance on account for lumber sold, $497.68. In his answer, defendant admits the purchase, but his defense is, that there is in the account an overcharge of $35, that he is entitled to a credit of $184.36, paid on the account, and that plaintiffs owe him $261, as commission on lumber sold by plaintiffs to defendant's employers, on defendant's recommendation, for which he alleges plaintiffs agreed to pay him a commission of two and one-half per cent. All of these allegations were denied by plaintiffs' replication. The defendant obtained a judgment for $38.73, from which plaintiffs appeal.

The evidence shows that plaintiffs resided at Fort Madison, Iowa, and were engaged in manufacturing and selling lumber; that they established a branch of their business at Kansas City, Missouri, and placed J. O'Sullivan in charge of it, to sell lumber. O'Sullivan testifies that he was employed by plaintiffs to sell their lumber. Samuel Atlee, one of plaintiffs, testifies that O'Sullivan was not authorized to make any agreement to pay commissions to other persons for selling their lumber. The firm paid O'Sullivan a salary of $1,800 per annum. The defendant, Fink, testifies that he, O'Sullivan and W. H. Atlee, (who was not a member of the firm of plaintiffs,) were together when O'Sullivan and defendant made the agreement by which the latter was to receive the commission on sales O'Sullivan might make to defendant's employers through defendant's influence with them; that his employers paid him for superintending the erection of the various buildings erected by them, and it was his duty to keep the laborers at work, and see about materials and all details; that his employers would pay no bills for labor or lumber until certified by defendant to be correct; that he never informed them, or any of them, that he was to get a commission on the lumber purchased by them of plaintiffs. This is the substance of the testimony on the only branch of the case which we deem it necessary to consider.

1. PRINCIPAL AND AGENT: implied powers of agent.

O'Sullivan was not expressly, or by the nature of his employment, authorized to make the contract in question. He was, as he testified, but an agent to sell, and could not delegate that authority to an other. Especially was he not authorized to promise a compensation for sales made for the firm by others, which would bind the firm. Story on Agency, (6 Ed.) § 387; Warner v. Martin, 11 How. 209.

2. ______: secret contract of agent with adverse party.

But it is unnecessary to extend our remarks on that proposition, because, if O'Sullivan had had ample authority to make such a contract, it is contrary to public policy to allow the plaintiffs to recover on it. He was employed by others to transact business for them, and they paid no bills for lumber not certified by him to be correct, and for two and one-half per cent commission on sales to his employers, he sold his influence with them to the plaintiffs. He kept them in ignorance of the agreement he had made with O'Sullivan. That agreement was a temptation to...