Dorsett v. Garrard

• Citation: 11 S.E. 768,85 Ga. 734
• Parties: DORSETT v. GARRARD et al.
• Decision Date: 12 July 1890
• Court: Georgia Supreme Court

11 S.E. 768

85 Ga. 734

DORSETT v. GARRARD et al.

Supreme Court of Georgia

July 12, 1890

Error from city court of Savannah; HARDEN, Judge.

R. J Dorsey and Deanmark, Adams & Adams, for plaintiff in error.

Charlton & Mackall, for defendants in error.

SIMMONS J.

1. It appears from the record in this case that the county of Chatham had five commissioners and ex officio judges, whose duty it was to look after the interests of the county with regard to its roads, bridges, public buildings and other property, its financial affairs, etc., and to perform this service without compensation. The county owned a certain tract of land in the city of Savannah, which the commissioners desired to sell, and it was advertised for sale by their order. Garrard and Myers, the defendants in error saw the advertisement and concluded to purchase the property. Garrard saw Estill, one of the commissioners, and inquired about the land, the size of the lots, price, etc. Estill referred him to Dorsett, the plaintiff in error, who was also a commissioner, and whose business occupation was that of real-estate agent. Garrard had an interview with Dorsett about the size and price of the lots, etc., and Dorsett told him, in substance, that the land was for sale, but that the commissioners had not fixed upon any price, but would do so at their next meeting. Upon Garrard's intimating a desire to purchase the land, Dorsett told him that he would have to pay him a commission of 2 1/2 per cent. upon the sale. Garrard, as he alleges, believing that Dorsett was authorized by the board to charge this commission, agreed to pay it. Subsequently the board fixed the price of the lots which Garrard and Myers wished to purchase at $16,000, and they became the purchasers thereof at that amount, and paid Dorsett $300 as part of the commission which he charged upon the sale of the land. After the sale, and after the payment of the $300 to Dorsett, Garrard and Myers ascertained, as they alleged, that the board of commissioners had not authorized Dorsett to charge commissions upon the sale of the land, and they demanded of Dorsett the return of the $300 which they had paid. Dorsett refused, and they brought their action against him to recover the amount. They alleged in their petition that the money was paid by them through a mistake, they believing that Dorsett was authorized to charge commissions, when in truth and fact he was not. Dorsett claimed that he was so authorized by the commissioners, and that he was entitled, as a real-estate agent, to charge such commission, although he was a county commissioner. On the trial of the case the jury found a verdict for the plaintiffs. Dorsett moved for a new trial, which was refused and he excepted. Among the grounds in the motion were the following: "Because the court erred in refusing to give in charge the following written request: 'Even should the jury find that, because the defendant was a county commissioner, he had no right to charge commissions, yet if the plaintiffs knew he was a commissioner when the money sued for was paid, the plaintiffs cannot recover back the money on this ground.' Because the court erred in refusing to give in charge the following written request: 'If the jury find that the defendant could not charge, and that the reason for this was the fact that he was a county commissioner, the plaintiffs could not recover the money back if they knew that the defendant was a commissioner when they paid him, and it is here admitted that the plaintiffs did know."' (Sixth and seventh grounds of amended motion.) We think the court erred in refusing to give in charge these requests. They are doubtless predicated upon the principle that a trustee or an agent could not make a personal profit from his principal's property, (Code, § 2187,) and that any contract made by him for that purpose was contrary to public policy and void. Dorsett was a trustee or agent of the county. Our constitution declares that "public officers are the trustees and servants of the people." Bill of Rights, par. 1, (Id. § 4993.) As a trustee and servant of the people who owned this property which had been advertised for sale, it was the duty of Dorsett, as well as of the other commissioners, to exercise his best judgment and skill, and to do everything reasonable in his power to obtain the best price for the land. This duty was imposed upon them by law when they accepted the office, and it does not matter, in our opinion, whether they were to receive compensation from the county for this duty or not. The office was not forced upon them, but was voluntarily assumed. Their duties were the same whether paid for by the county or not. Having accepted the office, they were bound by the law and their oaths to discharge these duties to the best of their ability, and it would be illegal for them or any one of them to demand or accept any compensation for the performance of the duties imposed by law. Greenhood on Public Policy (page 328) lays down the rule that "any contract to pay a public officer for doing his duty when he is required to do it without such payment, or to pay him a greater sum than contemplated by the laws of the government which he is serving, is void." See Mechem, Pub. Off. §§ 376, 861, 882, 883, 885; Whart. Cont. §§ 413, 500, 502; New Haven, etc., Co. v. Hayden, 117 Mass. 438; City of Newton v. Railway Co., 66 Iowa 422, 23 N.W. 905; Lancaster Co. v. Fulton, 18 A. 384; Adams Co. v. Hunter, 43 N.W. 208. "A trustee can make no profit for himself out of the trust estate." Dowling v. Feeley, 72 Ga. 557. "The rule that one holding a position of trust cannot use it to promote his individual interests by buying, selling, or in any way disposing of the trust property, is now rigidly administered in every enlightened nation, and its usefulness and necessity become more and more apparent." Butts v. Wood, 37 N.Y. 319. The law forbidding the trustee or agent to make a profit out of his principal's property, and declaring that any contract made with him, the consideration of which is to do his duty, is illegal...