Carter v. Eastman Gardner & Co.

• Decision Date: 08 March 1909
• Docket Number: 13,657
• Citation: 48 So. 615,95 Miss. 651
• Court: Mississippi Supreme Court
• Parties: ISOM CARTER ET AL. v. EASTMAN-GARDNER COMPANY

48 So. 615

95 Miss. 651

ISOM CARTER ET AL. v. EASTMAN-GARDNER COMPANY

No. 13,657

Supreme Court of Mississippi

March 8, 1909

FROM the chancery court of Simpson county, HON. JAMES L McCASKILL, Chancellor.

Carter and wife, appellants, were complainants in the court below the Eastman-Gardner Company, appellee, was defendant there. From a decree in defendant's favor the complainants appealed to the supreme court. The facts are stated in the opinion of the court.

Reversed and remanded.

May Flowers & Whitfield, for appellants.

For a case in point as to what constitutes fraud in law, see White v. Trotter, 14 Smed. & M. 42, 43.

A contract, the making of which requires the exercise of discretion, made by one acting for both parties is voidable upon the application of either.

No man can serve two masters. All men being subject to the frailties of human nature, it is not only improper and inconsistent for one to attempt to look after the interest of the buyer and seller in a trade, and such conduct is clearly fraudulent. The deed is voidable upon principle of equity. Insurance Co. v. Myers, 55 Miss. 479; Wildberger v. Insurance Co., 72 Miss. 338, 17 So. 282.

Following the opinion delivered by SIMRALL, C. J., in the case of Planters' Insurance Co. v. Myers, 55 Miss. 497, we say that the position of Runnells in the case at bar attempts a natural, logical and legal impossibility. It converts the agent of one into the agent of both. It places the agent in an inconsistent and antagonistic position. And in the concurring opinion of CHALMERS, J., in the above case he lays down the general propposition to be that a man cannot bind others by a contract between himself and his own agent.

Sullivan and Phillips paid Runnels the $ 50 for the purpose of effecting this deal for Carter's land; and at the same time trading with him and recognizing him to be the agent of Carter.

Credulous and ignorant as old Isom and his wife are admitted to be, any trade with them should have been a plain, straightforward and square deal. But what does the record show? It shows a trade teeming with misrepresentations and trickery from beginning to end, and that Isom was taken advantage of at every step.

Fraud then being the dominant scheme underlying this whole transaction, the misrepresentations are but the natural incidents thereto.

Shannon & Street, for appellee.

The questions involved are all questions of fact, found against appellants by the court below on disputed testimony, and the decree appealed from should be affirmed.

The counsel for appellants have cited no case which sustains their contentions.

The case of White v. Trotter, 14 Smed. & M. 30, is a case against the agent himself. Trotter was the agent of both the debtor and creditor at an execution sale and bought, in his own name, the property sold, and did not pay the creditor the amount of her debt. She filed a bill to cancel the sale made to the agent and to subject the property to the payment of her debt. There is not a single feature in that case even similar to the case at bar.

Nor is the case of Insurance Co. v. Myers, 55 Miss. 479, in point. A clause in the policy of fire insurance in that case attempted to make the insurance agent, who solicited the business, the agent of the insured, under all circumstances, and not the agent of the company. The court held that such a stipulation could not convert the agent who procured the application and made the contract of insurance on behalf of the company into an agent of the assured.

The reference to Wildberger v. Insurance Co., 72 Miss. 338, made by counsel, was, we think, unfortunate for them. In the first place the case is totally unlike the case at bar, it being a case where Wildberger was the agent of the insurance company and also receiver of a stock of goods. In this capacity, he, as agent of the insurance company, issued to himself, as receiver, a policy of insurance, on the stock of goods, and before the company ever ratified the contract of insurance, or knew of it, the goods were destroyed by fire. The company refused payment and suit was brought against it by Wildberger himself, the identical party who acted in the dual capacity. The court held that he could not recover. But there is no sort of similarity between that case and the case at bar. Here, Runnells, the alleged agent of both parties, is only a "middle man," and is in no sense a party to this suit.

Argued orally by Geo. W. May, for appellant.

OPINION

MAYES, J.

The original bill was filed on February 6, 1906, within a few months after the complainants deeded to Eastman-Gardner Co. the one hundred sixty acres of land in question, and about six years after the deed conveying the timber on same. Both...