S. G. Holland Stave Co. v. Massey , 212 Ala. 489 ( 1925 )

The only theory upon which plaintiffs could recover on the common count for money had and received by defendant to their use is that defendant, Massey, was the agent of plaintiff, standing to them in such a relation of trust and confidence in procuring a sale of their land as to impose upon him the duty of informing them as to the terms of the sale he arranged with the Marshall Tie Company, and of the profit he was to make, and forbidding him to secretly make and receive any profit for himself. In support of this theory it is suggested that defendant was a subagent of plaintiff's chief agent, Orman, who had implied authority to employ and use him in effecting a sale; that defendant was so employed; and that therefore he was in legal effect an agent of plaintiffs, and bound by the duties and limitations placed by law upon such an agent — citing Schloss v. Gibson, etc., Co., 6 Ala. App. 155, 60 So. 436.

We have examined the evidence with due care, and we fail to find anything that tends to support the theory stated.

The evidence shows conclusively that defendant's only relation with Orman was that of an independent buyer; that Orman's only requested function was to procure an offer from plaintiffs to sell the land to defendant or to some unknown customer of his; that defendant was acting independently for himself from the beginning, or, if he could have been regarded as an agent at all, it could only have been as agent for the ultimate purchaser in a strictly limited and non-fiduciary sense; that defendant was in no sense acting as an agent for plaintiffs, either directly or as a subagent of Orman's; and that he owed no duty whatever to plaintiffs.

Plaintiffs received the price they fixed, and Orman was their agent to close the transaction at that price. If defendant could make $10,000 out of the purchaser, it was no concern of plaintiffs', and it was immaterial how the purchase money was paid.

The fact that this $10,000 was passed through the hands of their agent, Orman, gave them no claim to it, legal or equitable, and there is nothing to support their claim that that money belongs to them.

If all the rulings on the evidence had been favorable to plaintiffs it would not have strengthened their case, and the general affirmative charge for defendant must still have been given as requested.

It results that the trial court did not err, and the judgment for defendant must be affirmed.

Affirmed.

ANDERSON, C. J., and THOMAS and BOULDIN, JJ., concur.