Adams v. Sayre , 70 Ala. 318 ( 1881 )

SOMERYILLE, J.

It is settled in our practice, that a bill in equity may be framed with a double aspect, embracing alternative averments, provided that each aspect entitles the complainant to substantially the same relief, and the same defenses are applicable to each. — Gordon's Adm'r v. Ross, 63 Ala. 363; Micou v. Ashurst, 55 Ala. 607. If the causes of action presented are so distinct as to require inconsistent and repugnant reliefs, and different defenses, the bill is demurrable on the ground of multifariousness.

And under the provisions of section 3788 of the Oodp of 1876, any defect in the frame of a bill may be amended, so as to meet any state 'of evidence authorizing relief; unléss it makes an entirely new case, or is tantamount to a radical departure from the case made by the original bill, or operates as an entire change of parties.—Pitts v. Powledge, 56 Ala. 147.

Complainant’s bill was not obnoxious to these objections, at any rate after the amendment authorized by the chancellor. In each aspect, it seeks to avoid the sale made under the execution of the power in the mortgage to Joseph, and to redeem the property — in the one alternative, under the terms of an alleged agreement; and in the other, according to terms imposed by law. The relief thus afforded, in the two alternatives presented, are similar, if not identical in kind, and are certainly not repugnant in their nature.

The offer of complainant to do equity was, under the circumstances, sufficient. He averred his ignorance of the amount bid by Adams at the sale, his unsuccessful application to the latter for an accounting with him, and an offer to redeem by paying what was due him.—Eslava v. Crampton, 61 Ala. 507; Rogers v. Torbut, 58 Ala. 523 ; Gunn v. Brantley, 21 Ala. 633. He also accompanied the averment of usury with the requisite offer to pay the principal of the debt, with legal interest.—Uhlfelder v. Carter's Adm'r, 64 Ala. 527.

The relation of Adams towards the complainant, Sayre, was clearly a fiduciary one. He was Sayre’s agent, having the control and possession of the mortgaged property, and performing the duty of managing and renting the same, collecting rents, and paying taxes and insurance. He was also the authorized agent of Sayre, the mortgagor, to effect a sale of the property. lie resided in the city of Montgomery, where the property was situated, while his principal i'esided some distance from the city, in the country. Such an agency carries with it the duties exacted by law from fiduciary characters.—Zetelle v. Myers, 19 Gratt. 62; Ewell’s Evans on-Agency, 249, note 2. The agent is not permitted to traffic with the subject-matter of his agency, without the consent of his principal, so as to reap a profit for himself. "When he undertakes to manage in a particular matter for another, he impliedly undertakes not to manage for himself. It is contrary to well-established principles of equity, to permit an agent to purchase an interest in property when he lias any duty devolved on him inconsistent with the character of a purchaser.—Grumley v. Webb, 44 Mo. 44; Saltmarsh v. Beene, 4 Port. 283. The appellant was the agent of the mortgagor to sell the property, and this relationship imposed on him the manifest duty of obtaining for it the highest available price. The procurement ’ of Joseph not to bid against him at the mortgage sale, was an obvious infraction of this duty.—Ewell’s Evans on Agency, pp. 272, 275.

We cannot see that the chancellor has erred in decreeing relief to the complainant, or in announcing the principles on which the account between the parties should be stated. Let the decree be affirmed.