Everhart v. Searle

• Decision Date: 13 May 1872
• Citation: 71 Pa. 256
• Court: Pennsylvania Supreme Court
• Parties: Everhart <I>versus</I> Searle.

Page 256

71 Pa. 256

Everhart versus Searle.

Supreme Court of Pennsylvania.

March 15, 1872.

May 13, 1872.

March 15th 1872.

Before THOMPSON, C. J., SHARSWOOD and WILLIAMS, JJ. AGNEW, J., at Nisi Prius

Error to the Court of Common Pleas of Luzerne county: No. 313, to January Term 1872.

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A. Ricketts (with whom was V. L. Maxwell), for plaintiff in error.—The law does not permit the agent for the sale of a tract of land to become at the same time agent for the purchase of the same: Story's Agency, § 211; Ex parte Bennett, 10 Ves. 381; Gregory v. Gregory, Cooper 201; Crowe v. Ballard, 3 Bro. C. C. 117; S. C. 2 Cox's C. C. 253; 1 Lead. Cas. in Eq., notes to Fox v. Mackreth, 196, 214, 3d Am. ed.; Davoue v. Fanning, 2 Johns. Ch. 352; Copeland v. Merc. Ins. Co., 6 Pick. 198; Lazarus v. Bryson, 3 Binney 54; Moody v. Vandyke, 4 Id. 31; Rankin v. Porter, 7 Watts 387; Bartholomew v. Leech, Id. 472; Noel v. White, 1 Wright 514. The seller himself cannot become agent for the purchaser: Massey v. Davies, 2 Ves. Jr. 317; Benson v. Heathorn, 1 You. & Coll. C. C. 326; Gillett v. Peppercorne, 3 Beav. 78; Paley on Agency 33, 37. One employed to sell cannot contract with a purchaser for his own private advantage: East India Co. v. Henchman, 1 Ves. Jr. 287, and n. 2; Massey v. Davies, 2 Id. 317, and notes a and 1, 2, Sumner's ed.; Paley on Agency 38 and notes; Story's Eq., § 1261. The rule is enforced without regard to the intentions, good or bad, in the particular case, simply upon principles of public policy: Ex parte Bennett, 10 Vesey 381, 385.

A. T. McClintock (with whom was C. S. Stark), for defendant in error, cited Gould v. Lee, 5 P. F. Smith 99; Barnhart v. Riddle, 5 Casey 96; Aldridge v. Eshleman, 10 Wright 420, as to explaining a writing.

The opinion of the court was delivered, May 13th 1872, by THOMPSON, C. J.

The case before us is rather novel. It involves a question whether the same person may be an agent in a private transaction for both parties, without the consent of both, so as to entitle him to compensation from both or either. We have the authority of Holy Writ for saying that "no man can serve two masters; for either he will hate the one and love the other, or else he will hold to the one and despise the other." All human experience sanctions the undoubted truth and purity of this philosophy, and it is received as a cardinal principle in every system of enlightened jurisprudence.

The plaintiff below was appointed by one A. S. Flagg, of Massachusetts, agent to sell certain real estate, situate in Luzerne county, Pennsylvania, and was to receive for his compensation all that he might realize over $125 per acre. Two days after the date of this authority, to wit, on the 17th January 1870, he accepted from the plaintiff in error the contract in writing upon which this suit was brought, promising to pay him $500 as therein set forth, "for his services in assisting him to negotiate a sale and purchase, by him of fourteen of eighteen shares, or all, if he can obtain them conveniently, of the eighteen (shares) of a certain piece or parcel of land situate in Lackawanna township," &c., composed of the same land he was appointed to sell. We need not spend time to argue, what is not susceptible of controversy, that by the terms of the instrument he accepted employment as agent to purchase the same land which he was employed as agent to sell. It is true, the learned judge below, no doubt strongly impressed by the maxim "that the laborer is worthy of his hire," endeavored to make a distinction in the transaction between an undertaking as an agent, and the sale of a preference to the defendant as a buyer. I ought to say, however, that this was hardly his interpretation of the writing, but rather the plaintiff's explanation of his duty under the contract. But the plaintiff, as a witness on the stand, had no right to construe the language of the written contract on which he had brought his suit. There was nothing left out, and no ambiguity in it, and therefore not within the rule of oral explanation. The interpretation was for the court on the terms of the instrument, and they obviously stipulated for the plaintiff's services to assist the defendant in negotiating for the shares mentioned, "or all, if he can obtain them conveniently." He was thus to be acting with the defendant, or by himself, for the defendant, just as the object in view might demand. This was an agency "pure and simple." I do not think, however, that the result as to the plaintiff's claim ought to be at all different from what it is likely to be, on the ground assumed by the learned court; for even on that ground the agent bargained away what his first employer had engaged, viz., his discretion. This was bad faith towards him, and ex maleficio non oritur contractus.

There was plausibility and seeming force in the argument that as Flagg, the plaintiff's principal in the sale, was not injured by the arrangement with the defendant, there was nothing wrong in making that arrangement. This is specious, but not sound. The transaction is to be regarded as against the policy of the law, and not binding upon a party who has a right to object to it. "It matters not," it is said, p. 210, of Hare and Wallace's Notes, 1 Lead. Cases in Eq., "that there was no fraud meditated and no injury done; the rule is not intended to be remedial of actual wrong, but preventive of the possibility of it." This was said of "any one who acts representatively, or...