Forlaw v. Augusta Naval Stores Co. , 124 Ga. 261 ( 1905 )

Beoe, J.

(After stating the facts.) 1. If the three minor children of the plaintiff in error, Forlaw, had resided permanently under a roof which he had provided and under which he himself lodged when on his visits to them, we might have been able to hold, as a matter of law that even-though the greater part, or practically all, of his time was passed at other places in other counties or in other States, he had a family. ■ But that is not the case presented by the record in the cause arising out of the issue made by the plea to the jurisdiction. “A family is defined as a collective body of persons who form one household, under one head and one domestic government, including parents, children, and servants, and, as sometimes used, even lodgers or boarders.” 12 Am. & Eng. Enc. L. (2d ed.) 866. Again, “A family is a collective body of persons who' live in one house and under one manager.” Webster’s Dictionary. And again, “Parents with their children, whether they dwell together or not; . . in a narrow use the children of the same parents, considered collectively or apart from the parents.” Century Dictionary. “In a broad sense the word ‘family’ may include all the person’s children, whether living with him or not, and even their relatives; but in a more limited sense it includes only those living together as one household.” Hart v. Goldsmith, 57 Conn. 479. “ ‘Family’ is defined as, 1. Persons who collectively live together in a house or under one head; a household. 2. Those who are of the same lineage, or who are descended from one common progenitor; a race or tribe; a house.” Peeler v. Peeler, 68 Miss. 141. The word “family” has no one fixed, technical definition. Its meaning varies very greatly according to the subject of the law in which it is used;' it varies in different statutes, and has received various definitions in different jurisdictions, even in the interpretation of statutes substantially identical. The very extensive range of these definitions is well illustrated in the numerous citations of authorities given under the first definition of the subject, from the American & English Encyclopaedia of Law, above quoted. It follows that the meaning of the word “family” in the .section of the code defining domicile is not necessarily identical with the meaning of the same word as used in the homestead and exemption laws; and we find still further variations of its meaning when we pursue it to criminal laws and police regulations. See Goode v. State, 16 Tex. 414; Bones v. State (Ala.), 23 So. 485. Without attempting to select from the numerous definitions of the word “family” one that would be so comprehensive and general as to be applicable in all cases, we think that no definition of the word as nsed in the Civil Code, § 1824, would be acceptable or satisfactory that does not convey the idea of unity of the household in which are gathered the members of the family as one collective body under the management or control of the head thereof, or to which the head of the family, though called away by the demands of business for periods of longer or shorter duration, constantly returns or expects to return. There was evidence in the case at bar from which the jury would have been authorized to find that Forlaw was, in this sense of the word, the head of a family. And as we view the case, the preponderance of the evidence was in support of his contention on this point. But there was evidence to the contrary, which authorized a different finding. From Forlaw’s own testimony we are left in doubt as to the terms upon which his children were living with the brother-in-law when they were in the latter’s house. His son was “there all the time,” whether as a boarder or as a member of the brother-in-law’s, household the record is silent. His daughters “are there when they are through with school,” but how much time they spend at school as compared with the duration of their stay under the brother-in-law’s roof we are left to conjecture. His household goods and furniture were also at his brother-in-law’s, but whether in use as the furniture in any particular room, or whether stored away in the house, we have no means of discovering. The defendant whose domicile is in question had not paid taxes in Chatham county, not even a poll tax, nor had he returned any property for taxation in that county until after this suit was filed against him and his codefendants. When he visited his family in the city of Savannah he stayed at a hotel when he did not stay at the place with his children; but what proportion of this time when in Savannah he spent at the latter place, and what at the hotel, we are again left to infer from indefinite and very general statements. As was pertinently suggested in argument here, in the event suit against Forlaw had been brought in Chatham county and it had been desired to serve the writ upon him at his “most notorious place of abode,” should it have been left at the residence of his brother-in-law or at the .hotel where he frequently lodged? Or again, suppose that one of his children had resided permanently in Chatham county and the other two in Baldwin while he was sojourning in Bichmond, where would his domicile have been ? That would be determined from intention, declarations, and acts, making it a fact to be determined by the jury under the instructions of the court, and not by the court as a matter •of law. “The existence or nonexistence of a domicile in a given locality, where the facts are conflicting, is a mixed question of law .and fact. So far as it involves questions of fact, including the .ascertainment of the intention of the party, it is solely within .the province of the jury, whose determination is conclusive, unless the verdict is set aside as having been against the evidence. . . And .generally speaking, the question of what should be considered the ■domicile of a party is in all eases rather a question of fact than of .law.” 9 Cyc. 865. What we have ruled touching the meaning of dhe word “family” is altogether in reference to the sense in which it is used in the Civil Code, §1824, defining domicile. In other •connections the word might have a broader, or a more limited, or a .more technical meaning; as, for instance, in the laws relating to .homestead and exemptions. Rountree v. Bernard, 59 Ga. 629. See also Fulghum v. Strickland, 123 Ga. 258.

From what we have said above, the conclusions reached in head-motes 2, 3, 4, and 5 necessarily follow.

6. This case is clearly within the fundamental equitable principle laid clown in the sixth headnote. It is true that Forlaw was not nominally the agent of the plaintiffs in this case. He was the agent ■of the Ellis-Young Company, who were the factors of the plaintiffs; but he brought himself within confidential relations of a fiduciary •character with Heath and Hogan when he and Young, by advising with the former and suggesting material changes in the terms of the .lease which had been contracted for with the Woodward Lumber ■Company, induced them'to waive their (plaintiff’s) interest and right in the turpentine privileges in the Cashin mill tract so that a mew lease might be obtained from the lumber company of the turpentine privileges on this valuable tract of land. It is true that .Forlaw took the lease from the lumber company to himself individually, but this was under an agreement and understanding between him and the plaintiffs, according to which a corporation .•should be formed and a one-third interest of the stock thereof taken by Heath and Hogan, the Ellis-Young Company furnishing them the money with which to pay for the same. So the new lease of the mill tract, whether Heath and Hogan, or the Ellis-Young Company, or Forlaw were named therein as lessees, was for the benefit of the corporation which was to be created — that is, for the benefit of the incorporators, two of whom were, under the stipulations set forth in the petition, to be these plaintiffs. When Forlaw went to-the Woodward Lumber Company to secure the new lease, he went armed with knowledge, with authority, with power that he had acquired because of the confidential relations into which he had been brought with the two men who are' now seeking equitable relief. The plaintiffs themselves, through Forlaw, had opened negotiations-with the Woodward Lumber Company, which resulted in an agreement being reached whereby the lumber company agreed to sell the entire turpentine privileges on the Cashin mill tract for a fixed, sum, waiving its rights to a part of the profits arising from the business which had been stipulated for in the first contract. The lease to Forlaw could not have been obtained but for the agreement and consent of the plaintiffs that it should be made; nor. that agreement and consent had but for the confidence reposed by the plaintiffs in Young and Forlaw. The latter and certain named associates,, neither of whom was Heath or Hogan, proceeded to secure a charter for a corporation under the name of the “D. J. Forlaw Company/7' but with the identical object and the same rights, powers, and privileges as had been contemplated for the corporation agreed upon between himself, Young, and the plaintiffs. To rule that the Ellis-Young Company was to be permitted to hold the leases assigned to-it to the turpentine privileges in the 3,713 acres and the lease to the-Cashin mill tract, executed to Forlaw and assigned by him to the-Ellis-Young Company, would be a holding at variance with the doctrine established by numerous authorities, and it would be unsupported by any authority to which our attention has been directed. The safe principle and sound, under the facts of a case like this,, seems to be one announced in the American note to Keech v. Sandford, 1 Lead. Cas. Eq. 53, where it was thus forcibly and comprehensibly expressed: “Wherever one person is placed in such relation to another, by the act or consent of that other, or the act of a. third person, or of the law, that he becomes interested for him, or interested with him, in any subject of property or business, he is-prohibited from acquiring rights in that subject antagonistic to the-person with whose interests he has become associated.” And in the case of Conant v. Riseborough, 129 Ill. 391, it was said: “The principles applicable to the facts of this case are well settled by the-authorities. ‘If confidence is reposed, it must be faithfully acted upon and preserved from any intermixture of imposition. If influence is acquired, it must be kept free from the taint of selfish interest and cunning and overreaching bargains/ (1 Story’s Eq. Jur. §308.) Where a person is intrusted as a confidential agent with the conduct of business where he professes not to act for himself, but for others who have placed their confidence in him, he is disabled in equity, even though he may be a volunteer, from dealing in the matter of his agency on his own account. ‘The agency being established, he will be compelled to transfer the benefit of his contract, although he may swear that he purchased on his own account/ (Dennis v. McCagg, 32 Ill. 429.) The rule applies not only to persons standing in a direct fiduciary relation towards others, but also to those who occupy any position out of which a similar duty ought, in equity and good morals, to arise. No party can be permitted to purchase an interest when he has a duty to perform which is inconsistent with the character of a purchaser. (Davis v. Hamlin, 108 Ill. 39; Vallette v. Tedens, 122 Id. 607.)” And the facts demanding the application of these rules and principles, the statute of frauds can not be invoked to prevent it. If the allegations of the equitable petition in this action are true (and they are to be taken as true as against the demurrer), the Ellis-Young Company, the factors of plaintiffs, stand in a fiduciary relation to them, and, if the fraud and conspiracy alleged can bé proved, are trustees ex malificio; and the same is true of Eorlaw, in whose name the lease from the Woodward Lumber • Company was executed, should the same charges be established by the evidence. In another well- reasoned opinion from the court last quoted, we have the following ruling which strengthens the conclusion we have reached in the case at bar. “Where a confidential agent of one having a lease of a theater, who, from his position, was well acquainted with the profits of his principal in the use of the building, and who knew, some months before the old lease expired, that the latter was desirous of renewing his lease, offered privately to lease the theatre of the owner, proposing to give a larger rental than was reserved in the old lease, and denied to his principal that he was competing with him for the lease, but in fact did procúre a lease to be made to himself, it was held, that the benefit of such lease a court of equity would hold to inure to his principal, and that the agent would be heid to hold the same as trustee for his principal.” Davis v. Hamlin, cited supra. It was contended by counsel for the losing party in that case that the rule which the court applied, which holds an agent to be a trustee for his principal, had no particular application to the case, because Davis, the agent, was not an agent to obtain a renewal of the lease and was not charged with any duty in regard thereto; that bis was but the specific employment to engage amusements for the theatre, and that he was only an agent within the scope of that employment; that Hamlin, having á lease which would expire on a certain date, had no right or interest in the property thereafter, and that Davis “in negotiating for the lease did not deal with any property wherein he had an interest, and that the leased property was not the subject-matter of any trust between them.” It was further argued that the relation there between Hamlin and Davis was only one of master and servant or of employer and employee, and that the rule had never been applied to that relation as a class, “that the classes coming within that doctrine are embraced within the list of defined confidential relations, such as trustee and beneficiary, guardian and ward, etc.” But -the court replied that the subject was not comprehended within any such narrowness of view, but that in applying the rule it is the nature of the relation which is to be regarded, and not the designation of the man filling the relation. Or, as clearly expressed in an elementary work on equity, “The rule under discussion applies not only to persons standing in a direct ■fiduciary relation towards others, such as trustees, executors, attorneys, and agents, but also to those who occupy every position out of which a similar duty, in equity and good morals, ought to arise.” Bisp. Eq. §93. See also Fricker v. Americus Mfg. Co., ante, 165. And we have no hesitancy in affirming the judgment overruling the demurrers of Forlaw and the Ellis-Young Company.

6. As to J. K. Young, since it does not appear that he acted other than as agent for the Ellis-Young Company; and there being nothing clearly and distinctly alleged to show mala fides on his part, nor any allegation showing that he participated in the profits arising from the fraudulent scheme or conspiracy, his demurrer was properly sustained.

Judgment in each case aMrme’d.

All the Justices concur.