Tower v. O'Neil

The opinion of the court was delivered, January 3d 1871, by

Williams, J.

— The only question presented by the assignment of error in this case is, whether the proposition of William Ward, one of the plaintiffs, to take the property himself, which he and his co-plaintiff were authorized to sell, amounted to or was equivalent to a sale of it under the power ? The court below was of the opinion — and so instructed the jury — that the proposition could not be regarded as equivalent to a sale, because the instrument^iving the power to sell, does not contemplate a sale to the plaintiffs, or either of them — and public policy denies the right of an agent, under such a power, to sell to himself. The plaintiffs contend that, under the stipulations contained in the power of sale, this instruction was erroneous, and that the rule of law which forbids an agent to sell to himself, or several joint agents to sell to one of their own number, has no application in this case. The plaintiffs were authorized to sell the property for seventy thousand dollars, and for their services in making the sale the defendant agreed to pay them a commission of two per cent., and the additional commission of all they might sell the property for above the sum of seventy thousand dollars. As the price which the defendant was to receive for the property was fixed and limited by the stipulations contained in the power of sale, irrespective of the amount for which it might be sold, the plaintiffs insist that, without any violation of the policy of the law, either of them had the right to purchase the property on the same terms they were authorized to sell it to a stranger — and that the offer of one of them to take it on these terms was equivalent to a sale under the' power, and entitled them to the commission which the defendant agreed to allow them. But it seems to us that the question mainly discussed in the oral and printed argument, whether this case comes within the rule of law, which forbids an agent to sell to himself, does not properly arise under the evidence. The plaintiffs did not sell, nor did they undertake to sell the property to one of themselves. Ward’s offer to take the property, whatever may be its legal effect, was made to the defendant; and it was made, as the evidence shows, not in execution of the power of sale, but in answer to the defendant’s request to deliver it up. The offer was not pressed, and during the conference the plaintiffs said that if the defendant would extend the time (allowed for making the sale) thirty days longer they would give him three thousand dollars more than his contract price. The testimony of John Ward, the plaintiff’s son, is that “ after pleading and talking for some time, he (the defendant) said as quick as he got Mrs. Berry’s interest he would put the property back in their hands for sale; then father told me to hand him the article, which I did. * * * O’Neil told father and Tower that they had a good deal of trouble with this thing, and he wanted to pay them as far as they went, and paid them one hundred dollars apiece.” The plaintiffs gave the defendant a receipt for the two hundred dollars “ for services rendered.” It is clear that the offer, under the circumstances in which it was made, ca.nnot be regarded as equivalent to a sale of the property under the power. It was not so intended, or understood by the parties at the time it was made. There was no tender of the purchase-money, nor was anything done by the plaintiffs, or either of them, in pursuance of the offer, to put them in a position to treat it as equivalent to a sale under the power. On the contrary, they voluntarily surrendered the power of sale, and accepted the money tendered by the defendant as a compensation for the services they had rendered. But if the offer to take the property was made in execution of the power of sale, as contended by the plaintiffs, the defendant was under no obligation to accept it; and his refusal of it did not render him liable for the commissions he agreed to pay for selling the property. The relation between the parties, under the power of sale, was that of principal and agent, and it could not be changed into that of vendor and vendee without the consent of the defendant. Under no aspect of the case, then, were the plaintiffs entitled to recover anything beyond compensation for the services they rendered. The question as to the value of their services was fairly submitted to the jury with the instruction that if the plaintiffs were fraudulently induced to accept the amount tendered by the defendant under the assurance that the power was not revoked, but was to be restored, they should find such sum as they were entitled to receive over the amount paid them by the defendant. The court submitted the case to the jury with as favorable instructions for the plaintiffs as they had any right to ask, and if the jury did them any injustice by their verdict we have no power to correct it. Discovering no error in the record, we must affirm the judgment.

Judgment affirmed.