Glasier v. Nichols

• Decision Date: 27 January 1902
• Docket Number: 2,560.
• Citation: 112 F. 877
• Parties: GLASIER v. NICHOLAS.
• Court: U.S. District Court — Western District of Missouri

112 F. 877

GLASIER v. NICHOLAS.

No. 2,560.

United States Circuit Court, W.D. Missouri, Western Division.

January 27, 1902

Lathrop Morrow, Fox & Moore, for plaintiff.

Thomas & Hackney, for defendant.

PHILIPS District Judge.

The only objection raised at the argument on the motion for new trial affecting the verdict on the first count of the petition, deemed worthy of consideration, is the action of the court respecting the effort made by the defendant at the trial to show that he was permitted, under the terms of his employment as manager of the Continental Zinc Company, to engage independently in conducting a brokerage business,-- of buying and selling mining properties and prospects at Joplin. Waiving any discussion of the question, mooted at the trial whether such authorization by the zinc company, a chartered corporation, could be evidenced by proof in pais, without any affirmative action by the board of directors, let us consider whether the fact sought to be established was competent and relevant. The sole issue on trial on the first count was whether there existed the agreement or understanding between the plaintiff and defendant alleged in the petition, and testified to by plaintiff, as having been entered into on or about the 1st of May, 1900, and whether the plaintiff was induced to believe, by the conduct and words of the defendant, that the defendant was acting for and in the interest of the plaintiff, as his trusted friend and agent. If so, it was dishonest for him to speculate upon this confidential relation, and secure a benefit to himself at the expense of the plaintiff. What difference could it possibly make whether or not, with the consent of the Continental Zinc Company, he was pursuing the general avocation of a broker? It could in no wise relieve him of the obligation and liability which the law imposed upon his fiduciary relation to the plaintiff. The privilege to pursue such office of a general broker by no possible implication or intendment could affect the alleged obligation between him and the plaintiff which depended entirely upon the existence of a specific contract of fiduciary relationship. His right to engage in buying and selling generally was perfectly consistent with his legal undertaking to deal in a special manner with the plaintiff, and could not in the remotest degree disprove the existence of a special understanding, or mitigate the deceit and fraud which the jury have found he practiced and perpetrated upon the plaintiff. This was the opinion entertained by the court at the trial, as indicated by his observation during the discussion of the admissibility of this evidence that he did not perceive its importance. Reference to the charge of the court will show that throughout the plaintiff's right of recovery was made to depend upon the existence of the agreement or understanding, in its essential parts, and the taking advantage by defendant of the known confidential relationship between him and the plaintiff to make a profit for himself to the injury of his confiding friend. And the court is bound to assume from the verdict that the jury found these specific issues for the plaintiff. The error, therefore, complained of, is a mere harmless abstraction, and as such constitutes no basis for a new trial. Gregg v. Moss, 14 Wall. 569, 20 L.Ed. 740; Cannon v. Pratt, 99 U.S. 623, 25 L.Ed. 446; Mining Co. v. Taylor, 100 U.S. 42, 25 L.Ed. 541; Lancaster v. Collins, 115 U.S. 227, 6 Sup.Ct. 33, 29 L.Ed. 373. Superadded to all this is the fact that the plaintiff's counsel, on cross-examination of the defendant, Nichols, permitted the witness to testify, and the witness did testify, fully, that it was a part of his contract of employment as general manager of the Continental Zinc Mining Company that he was permitted to pursue the avocation of a mining broker at Joplin; and, as this evidence brought out by the plaintiff was not contradicted by the introduction on the part of plaintiff of any countervailing evidence, the defendant had the benefit of the fact for whatever it was worth. Other objections made to the rulings of the court on the admissibility of evidence have no reference to the issues under the first count of the petition, so the verdict on that count must stand.

The next contention of counsel for defendant is that the verdict on the first count is a bar to the action on the second count. There is, in my opinion, no legal incompatibility between these two counts. The clear meaning and purport of the cause of action predicated in the first count is that the defendant, in violation of his assumed character as the trusted friend and agent of the plaintiff, took advantage thereof to put upon the plaintiff properties in question at a given price, under the belief of the plaintiff, induced by the deceit of the defendant, that the price was what in fact the defendant was paying to the owners therefor, when in fact he had paid less, and received and appropriated to himself under the guise of commissions from the owners, over $13,000. As a party acting in such fiduciary relation must give to his principal the advantage of such contract, he is unquestionably liable, in an action on the case, for the sums thus appropriated. It is wholly immaterial what the pleader may denominate his action, or whether he has brought it for damages, or for the recovery of the specific sum misappropriated, and the like. The nature of the action and the relief sought are to be determined by the facts pleaded, as these, under the Code of Missouri, constitute the cause of action, and he is entitled to such judgment as the law attaches to the facts stated and proved. Wittenauer v. Watson, 11 Mo.App. 588; Henderson v. Dickey, 50 Mo. 161; Bank v. Evans, 51 Mo. 335; Wright v. Barr, 53 Mo. 340; White v. Rush, 58 Mo. 105; Ames v. Gilmore, 59 Mo. 537. If sufficient facts are stated to entitle the plaintiff to relief, the conclusions of law which the pleader draws from them, and particularly the relief he may ask, may, if necessary, be disregarded, and the court may grant any relief consistent with the case made by the evidence and embraced within the issues. Newham v. Kenton, 79 Mo. 382; Sharkey v. McDermott, 91 Mo. 647; 4 S.W. 107, 60 Am.Rep. 270; Baker v. Railway Co., 34 Mo.App. 98. The judgment is the conclusion of the law upon the facts found. The substantive effect of the cause of action stated in the second count of the petition is to recover from the defendant damages for his alleged deceit...