Cottom v. Holliday

• Decision Date: 30 June 1871
• Citation: 59 Ill. 176,1871 WL 8013
• Parties: SIMON COTTOMv.SAMUEL HOLLIDAY.
• Court: Illinois Supreme Court

59 Ill. 176

1871 WL 8013 (Ill.)

SIMON COTTOM

v.SAMUEL HOLLIDAY.

Supreme Court of Illinois.

June Term, 1871.

OPINION TEXT STARTS HERE

WRIT OF ERROR to the Circuit Court of Perry county; the Hon. MONROE C. CRAWFORD, Judge, presiding.

This was an action brought by Cottom against Holliday, in which the plaintiff seeks to recover of the defendant, money he claims the latter wrongfully received of him for the purchase money on a tract of land bought by the defendant, as agent of the plaintiff, from one Ritchie, in excess of the actual purchase price. The questions arising on the record are presented in the opinion of the court. Mr. EDWARD V. PIERCE, and Mr. R. M. DAVIS, for the plaintiff in error.

Mr. GEORGE W. WALL, and Messrs. MURPHY & BOYD, for the defendant in error.

Mr. JUSTICE WALKER delivered the opinion of the Court:

This was an action on the case on promises, brought by plaintiff in error in the Perry circuit court, against defendant in error. The declaration contained the common counts, to which the plea of the general issue was filed. A trial was had by a jury, resulting in a verdict in favor of defendant. The record is brought to this court, and various errors are assigned.

It is urged, that the court below erred in admitting evidence of conversations between defendant and Ritchie, when plaintiff was not present. Such evidence, under the long established rules, is inadmissible. No known rule will sanction such evidence. It is calculated to prejudice the rights of parties by enabling either to manufacture testimony against his opponent, of which he knows nothing, and could have no means of resisting. He should not be bound by the declarations of other persons, unless he was present and assented to their truth. The court erred in not excluding this evidence from the jury.

It is next insisted, that the court below erred in refusing to give plaintiff's second instruction, which is this:

“The court further instructs the jury, for the plaintiff, that a party can not take upon himself diverse interests; and that when Holliday, the defendant, received and accepted the power of attorney from the plaintiff Cottom, that he became, to all intents and purposes, the agent of Cottom, and that whatsoever transactions he had with Ritchie after the date of that instrument, in reference to the same transaction, he (Holliday) was acting in that capacity, and as such, must account to his principal, Cottom; for whatever funds is left in his hands after Ritchie is paid, belongs to plaintiff.”

It is the settled law, that an agent must not put himself, during the continuance of his agency, in a position which is adverse to that of his principal; for the principal bargains for the exercise of all the skill, ability and industry of the agent, and he is entitled to demand the exercise of all this in his own favor. 1 Pars. on Cont. 74. If plaintiff employed defendant as his agent to make the purchase of this land, then he became entitled to all of his skill, ability and industry, in making the purchase on the best terms that could be had, and plaintiff is entitled to have the property at the price at which defendant purchased of Ritchie. The duties and obligations of an agent are such, that he can not avail himself of any advantage his position may give him, to speculate off his principal. All the profits or advantages gained in the transaction, belong to the principal. The law will not permit the agent, without the assent of his principal, to acquire an interest in the subject matter of the agency, adverse to that of his principal. He must act solely for the interest of his principal while executing the trust. The law will not permit him to be tempted to abuse the confidence reposed in him by his principal. It is a trust voluntarily assumed, and it must be executed in the utmost good faith. This is but the dictate of justice, and common fairness requires its faithful observance. In view of these principles, it was manifest error to refuse this instruction.

The sixth of plaintiff's...