Smith v. Townsend , 109 Mass. 500 ( 1872 )

Colt, J.

Upon this appeal there is nothing before the court except the question whether the final decree is supported by the pleadings in the case. It is a simple appeal, without any report of the evidence or any facts found. It may be true that the evidence produced at the hearing fully sustained the decree, and yet it is open to the defendant to claim that upon the allegations in the bill the plaintiffs, as matter of law, are not entitled to the relief awarded.

On looking at the record we find that the bill contains in substance the charge that the plaintiff Smith, while employed as agent to sell the premises, of which the lot in question was a part, agreed with the defendant that he would put him in communication with his principal, the owner of the. lots, so that the defendant could make the purchase, in consideration that he would convey to Smith one of the lots so purchased. This is a consideration alleged for the contract sought to be enforced, and as thus alleged it is manifestly illegal. It was a contract made by Smith upon a consideration founded in a direct violation of his duty, and in fraud of the rights of his principal. Such a contract cannot be enforced in any court. A man cannot, -without the consent of his principal, become the purchaser for his own use and benefit of property which is intrusted to him to sell. The rights of the principal would be in too much danger from the conflict of adverse interests. Farnsworth v. Hemmer, 1 Allen, 494. Walker v. Osgood, 98 Mass. 348. Story on Agency, §§ 210-214.

An objection of this description, appearing upon the face of the pleadings, might have been availed of with less cost and delay by demurrer to the bill. It was said at the argument that this was the course originally taken, and that the demurrer was overruled without appeal. The record here does not show this, and the defendant has not lost his right to make the objection at this time. Gen. Sts. c. 113, § 11. .

Decree set aside.