879
FEDERAL REPORTE&
dence of an illicit purpose, would not be a violation of the complainants' rights. It is otherwise, however, when this is done with the obvious purpose of enabling others by the use of the labels to palm off their goods upon the public as the goods of the complainants. The demurrer is overruled, with costs. Defendants may a.nswer U pOll pay lUtlnt of costs.
HILL t7. CITY OIl' MEMPHIS.'
(Oireuit Oourt, E. D. 1.
April 27, ]885.)
Where, in a suit upon bonds issued by the town of Memphis, Missouri, in payment of a stock subscription in the N. 1\1. R. R. Co., a record of a special election had under the act of 1\1arch 21, 1868, to authorize the defendant to issue said bonds, was introduced in evidence, and it appeared therefrom that the election was only ordflred 12 days before it took place, 'Leld, that the record showed upon its face that the election was illegal, and the issuo of bonds unauthorized. 2. CONSTITUTIONAL LAW-BoNDS-ACT OF 1\IAUCH 24,1868, TO ENABLE TOWNS, ETC., TO FUND THEIR DEBTS.
MUNICIPAL BONDS-LOANS OF CREDIT BY MISSOURI TOWNS-SPECIAL ELECTIONS -ACT OF MARCH 21, 1868.
.. An act to enable counties, cities, and incorporated towns to fund their respective debts," contemplated a right in towns to subscribe stock there1>fter and issue bonds, or to issue bonds for subscriptions under old charters, without any special election authorizing the issuing of such bonds, it is contrary to section 14, art. 11, of the Missouri constitution of 1865, and invalid.
If the act of March 24, 1868, by the general assembly of Missouri, entitled
.
At Law. Motion for a new trial and motion for rehearing. The record of election offered in evidence in this case shows upon its face that on January 26, 1871, the special election in question was ordered for February 7, 1871, and was held on that day, only 12 days after the order was made. Section 4 of article 2 of the Missouri constitution of 1865 provides that after the enactment of registration laws "no person shall vote unless his name shall have been registered at least ten days before the day of election." The act of March 21, 1868, concerning the "Registration of Voters" provides (section 18) that "the clerk of the county court shall, 20 days before any special election, · · · cause to be delivered to the board of registration, or any member thereof, the books of registration, who shall immediately proceed to register qnalified voters." Section 2 of the same act provides that notice shall be given in each district 10 days before the first session of the board of registration. Section 14, art. 11, of the Missouri constitution of 1865, declares that "the general assembly shall not authorize any 1 Reported
by Benj. F. Rex, Esq., of the St. Louis bar.
BILL V. OITY OF MEMPHIIl.
873
county or town to become a stockholder in, or to loan its credit to, any company, association, or corporation, unless two-thirds of the qualified voters of such county, city, or town, at a regular or special elec. tion to be held therein, shall assent thereto. The act of March 24, 1868, referred to in the opinion of the court is entitled "An act to enable counties, cities, and incorporated towns to fund theirrespective debts;" and provides "that the various counties of this state be, and they are hereby, authorized to fund any and all debts they may owe, and for that purpose may issue bonds bearing interest at not more than ten per centum per annum, payable semiannually, with interest coupons attached; and all c.ounties, cities, or towns in this state, which have or shall hereafter subscribe for the capital stock of any railroad company, may, in payment of such subscription, issue bonds bearing interest at not more than ten per centum per annum, payable semi-annually, with interest coupons attached." The charter of the N. M. R. R. Co. referred to in the opinion of the court (Laws Mo. 1851, p. 483) specifically gave counties power (1) to subscribe stock; (2) to issue bonds to raise funds to pay such subscription; (3) to take proper steps to protect the credit of such county and in the same section merely authorized towns to "subscribe to the stock and appoint an agent to represent its interests." Judgment having been given for the plaintiff, the defendant moved for a new trial, and the first of the following opinions was delivered thereon April 13, 1885. Hough, Overall dJudson, F. T. Hughes, and A. J. Baker, for plain. tiff. . Henry A. Cunningham, for defendant. TREAT, J. Under the decision heretofore rendered in this case, the city of Memphis had no authority to issue bonds for a subscription to the railroad unless authorized flO to do at an electIOn held therefor. During the trial the record of the alleged election, whereby the bonds would be validated, was offered in evidence, under objections by the defendant. Without passing on each of the various points for a new trial, it must suffice that the record of the election on its face shows non-conformity with the positive requirements of the statutes. Hence the court was in error in its rulings with respect to said record. The motion for new trial will therefore be granted, without . considering the other points involved, inasmuch as the effect of said record must be conclusive in this suit as to the rights of the parties. In order that the parties litigant may not be involved in further expense and costs, it may be well to state that the record of the election on its face shows that there was no authority for the issue of the bonds sued on. The parties, if they so elect, can submit the case on the evidence heretofore offered, and thereupon judgment would necessarily be given for the defendant. The matters of estoppel heretofore presented would not prevail in the absence of authority for the issue of the bonds.
8'74
. FEDERAL REFORTER. '
A motion for a rehearing having been made by the plaintiff, and the matter reargued, the following opmion was delivered April 27, 1885: TREAT, J. When this CA.se was before the court at a former term, it was held by Judge MCCRARY that the authority of the defendant to subscribe stock under the railroad charters did not carry the right to issue bonds in payment thereof; hence, as that power must be derived from some other source, there being no estoppels by the recitals in the bonds, the plaintiff must produce evidence of such authority. 'fhe record of a special election had under the act of March 21, 1868, was produced, whereupon it was held, on the motion for new trial, that the same was void on its face; consequently, as no authority for the issue of the bonds existed, the bonds themselves were therefore void. On the reargument the attention of the court has been directed to the act of March 24, 1868; the other act referred to bearing date March 21, 1868. Under the constitution of 1865 registration of voters was exacted for either general or special elections, under such provisions as the legislature might prescribe with respect thereto, Legislation describing the details will be found in said act of March 21, 1868, confo.rmity with which was not had. By the terms of the constitution, no county, city, or town, could become stockholders, or loan its. credit, to any corporation, unless two-thirds of the qualified voters at a regular or special election should assent thereto. AI. though, nnder the rulings of the supreme court of Missouri, the right of defendaht to subscribe to the stock of the corporations named existed, yet there was no right to issue bonds or loan its credit in payment of such subscription, except by complying with said constitutional provision. Hence, if the act of March 24, 1868, contemplated a right to subscribe thereafter, and issue bonds, or to issue bonds for subscriptions under old charters, irrespective of the needed vote, the same would be irivl1lid. In this case it fully appears that no authority to issue bonds was had nnder a valid election. The views of the court heretofore expressed al'e stilladhel'ed tojdespite said act of March 24, 1868. . , Motion overruled.
ROBBINS V.
SEARS. 1 ·
(ai'l'Duit
E,D. New York. Febrl,lary 24, 1885.'
BUOKER-AGENCY FOR BO'rH PARTIES.
A broker who negotiates the hiring ofa steam-boat cannot act as agent of both parties to the transaction I so as· to be entitled to piJ,y for his services from each, unless they understood his position and expre:;sly agreed to such payments. "
lReported by R. D. & Wyllys Benedict, Esqs., of the New York bar.
ROBBINS V. SlUBS.
875
Motion for New Trial. T. C. Cronin, for plaintiff. Scudder cf: Carter, for defendant. WHEELER, J. This action is brought to recover commISSIons as broker on negotiating the hiring of a steam-boat by the defendant of one Wright. rrhe case shows that the plai'ntiff received a commission hom Wright for negotiating the letting of the steam-boat to the defendant. He could not act as the agent of both parties to the transaction so as to be entitled to pay for his services from each, unless they understood his position, and expressly agreed to such payments. Dunlop v. Richards, 2 E. D. Smith, 181; Pugsley v. MU1Tay, 4 E.D. Smith, 245; Rowe v. Stevens, 53 N. Y. 621; Carman v. Beach, 63 N. Y. 97. Payment for procuring the letting to the defendant would include payment for procuring the hiring by the defendant, unless there was an express agreement to pay more. There was no evidence that the parties agreed to the payment of any more commission than Wright paid. There was evidence that defendant agreed to repay to Wright one-half of what he was to pay to the plaintiff, and that the plaintiff afterwards spoke to defendant about money for services, and that the defendant said it would be fixed when the charterparty was signed. This is all the evidence there was in respect to any agreement by defendant to pay commissions. It was argued that this did somewhat tend to show an express agreement to pay beyond what Wright paid, and the case was submitted to the jury in that view. But this remark, if made, is referable as well to what was coming from Wright as to any additional commission, and falls far short of being sufficient to uphold the verdict finding an express agreement of defendant to pay commissions in addition to what Wright paid. The motion of defendant to set aside the verdict for plaintiff, and for a new trial, is granted. It is a well-settled and salutary principle of law that no agent will ever be allowed to take upon himself incompatible duties and characters, or to act in a transaction where he has an adverse interest or employment.! And the rule is sometimes laid down, in general terms, that the same person cannot bl'> the agent of both parties to a transaction. 2 In this case, it was correctly held that, in makin/{ a coutmct for the composition of a debt, the same man could not be the agent of both parties, but that, when the composition was agreed upon with the credit.or by the agent of the debtor, he could become the agent of the creditor for another and distinct purpose, such as holding the money for the 11se of the creditor. So a person stanuing in the position of agent of both parties cannot execute a mortgage as the attorne:.r of oue for the benefit of the other. 3 A contract, however, tlms made by a person as the agent of both parties is not void, but only voidable at the ejection of the principal, if he comes into court ontimelyapplication. 4 1 Evans' Agency, .14; I)unne v. English, L. R. 18 Eq. 524. 2 Hinckley v. Arey, 27 Me. 362.
8Greenwood v. Spring, 54 Barb. 375. 'Greenwood v. Spring, supra.
&76
,
FEDERAL REPORTER.
It is not necessary for a party seeking to avoid such a contract to show that any improper advantage has been gained over him. He has the option to repudiate or affirm the contract, irrespective of any proof of actual fraud.! In Sumner v. ChaTlotte, C. & A. R. CO.2 it was said that the law does not favor double agencies. Where, therefore, it .appeared, in an action for damages against the railroad company, that the plaintiff had employed one C., who was a depot-agent of the defendant, to purchase cotton for him, and to hold and ship it under his directions, it was held that C., in so dealing in cotton for the plaintiff, acted solely as the plaintiff's agent, and there was no liability in the defendant for any loss resulting from the failure of C. to perform his ' duty as such agent. In Adams Mining Co. v. Senter,3and in Colwellv. Keystone Iron CO.,4 however, the rule is more accurately laid down that there is no principle of law which precludes a person from acting as agent for two principals. In the formerc'ase, CAMPBELL, J., referring to the claim that the double agency in the case (the same person being the agent of two neighboring mines) involvedaconflict of duties, and that all of the agent's dealings, whereby tpe property of one company was transferred to or used for the other, should be held unlawful, said' "There is no validity in such a proposition. The authorityof agents may, when no law is violated, be as large as their employers choose to make it. There are multitudes of cases where the same person acts under power from different principals in their mutual transactions. Every partnerShip involves such double relations. Every survey of boundaries by a surveyor, jointly agreed upon. would come within similar difficulties. It is wheTe the agent has personal interests [the italics are our own] conflicting with those 0/ his princ1pal, [01' wheTe the interests 0/ the two pTincipals are adverse or incompatible,] that the law l'equires peculiar saj'eguaTds against his acts. There can be no presumption that the agent of two parties will deal unfairlj' with either; and when they both deliberately put him in charge of their separate concerns, and there is any likelihood that he may have to deal with the rights of both in the same transaction, instead of lessening his powers, it may become necessary to enlarge them far enough to dispense with such formalities as one man would use with another, but which could not be p08sihle for a single man to go through with alone." In Colwell v. Keystone Iron CO.5 it was accordingly held competent for a employ of the vendor to accept, by the consent of all ,person in the parties, all agent of the vendee, the delivery of the property sold. The fact that the purchaser of negotiable paper, resident in a distant part of the state. employs to collect the same a person who is also an agent for the payee, is not very significant of bad faith. 6 While a person cannot properly be the agent of both parties. buyer and seBer, yet if he accepts the position of agent for the buyer without disclosing the fact that he is agent for the seller, he cannot afterwards repudiate such position to shield himself from liability to the buyer, on the ground that he was agent for the seller. Having assumed the relation of agent for the buyer· .he must be held to a strict performance of the duties, and to all the liabilities 'the relation imposes. 7 Where an agent is employed by several principals, the common employment creates a relation and privity between the principals, such as will sustain an action for money had and received by one against another to recover moneys belonging to the former paid over by the agent to the latter. s A broker "is strictly a middle-man or intermediate negotiator between the lId. , 78 N. C. 289. '26 Mich. 73. 436 Mich. 51.
Helmer v. Krolick, 36 Mich. 371. v. Holliday, 59 Ill. 176. See, also, Bowen v. Johnson. 28 La. Ann. 9. 6Hathaway v. Town of Cincinnatus, 62 N.Y.434. 6
T Cottom
ROBBINS V. SEARS.
877
parties; and for some purposes (as for the purpose of signing a contract within the statute of frauds) he is treated as the agent of both parties." 1 In a subsequent section the same author says: "But, primarily, he is deemed merely the agent of the party by whom heis originally employed; and he becomes the agent of the other party only when the bargain or contract is definitely settled as to its term:J between the principals. * * * It would be a fraud in a broker to act for buth parties, concealing his agency for one from the other, in 6 case where he was intrusted by both with a discretion as to buying and selling, and of course where his jUdgment was relied on." 2 An agent cannot claim commission upon a transaction which has been entered into in violation of his duties to his principal, The same person cannot act as agent for both seller and purchaser, unless both know of and assent to his undertaking such agency, and receiving commissions from both. Whether such double agency, even with the consent of both principals, is consistent with public policy, is not here decided. s It is accordingly held that a broker employed to sell land (and the same rule would doubtless apply to sales of personalty) cannot recover compensation from both parties. 4 The rule is the same where an exchange of property is effected by a broker as where a sale is made. 6 Nor can an action for the recovery of commissions be maintained in such case against the owner of the prollerty exchanged-for, although by custom or usage among brokers in the place where the exchange was effected, they were entitled, in exchanges of real estate, to a commission from each party of 2t per cent. in the value of the property exchanged. b Evidence in behalf of the broker to show a custom among brokers to charge a commission to both parties in such cases is inadmissible. 7 If the broker in such a case exacts from a customer a promise of compensation additional to that promised by the person employing him to sell or exchange before sending the customer to the owner, he cannot recover any compensation from the owner for services, although a sale or exchange is effected with such customer. 8 The fact that no loss is suffered from such action of the broker does not vary its effect, the transaction being against public policy.9 But where each owner, with knowledge that the broker has been employed by both, promises to pay him a commission, such promise may be enforced. 10 And when a middle-man brings together a buyer and seller, each of whom has agreed, without the knowledge of the other, to pay the middle-man a commission on any contract which may be made between them, in the making of which the middle-man takes no part as the agent for either, the conduct of the middle-man in concealing from each his agreement with the other has been held not tb be fraudulent, and hence no defense to an action brought by him against either for 1 Story, Ag. 28; Rucker v. Cammeyer, 1 Esp. 106; Hinde v. Whitehouse, 7 East, 558,569; Kemble v. Atkins, 7 Taunt. 260; Henderson v. Barnewall, 1 Younge & J. 387; Beal v. McKiernan, 6 La. 407;. Hinckley v. Arey, 27 Me. 362. 2See Wright v. Dannah,2 Camp. 203; Farebrother v. Simmons, 5 Barn. & Ald. 333. 3 Meyer v. Hanchett, 39 Wis. 419; S. O. 43 Wis. 246. 'Watkins v.Oousa11, 1 E. D. Smith, 65; Vanderpoel v. Kearns, 2 E. D. Smith, 170; Everhart v. Searle, 71 Pa. St. 256; Bennett v. Kidder, 5 Daly, 512; Meyerv. Hanchett, 39 Wis. 419; S. C. 43 Wis. 246; Lloyd v. Colston, 5 Bush. 587; Finnerty v. Fritz. 5 Colo. 174, in which case the rule is laid
down that he is entitled to no commissions from either party. 5 Scribner v. Collar, 40 Mich. 375; Pugsley v. Murray, 4 E. D. Smith, 245; Farnsworth v. Hemmer,l Allen, 494; Walker v. Osgood, 98 Mass. 348; Raisin v. Clark, 41 Md. 158; Meyer v. Hanchett. 43 Wis. 246; S. C. 39 Wis. 419; Lynch v. Fallon, 11 R. I. 311; Rice v. Wood, 113 Mass. 133. See, also, Carman v. Beach. 63 N. Y. 97. 6 Raisin v. Clark, 41 Md. 158. See, also, Lynch v. Fallon, supra. TFarnsworth v. Hemmer, 1 Allen, 494. e Walker v. Osgood, 98 Mass. 348. · Everhart v. Searle. 71 Pa. St. 256. 10 PugSley v. Murray, 4 E. D. Smith, 245; Rowe v. Stevens, 53 N. Y.621; Alexander v. N. W. C. University, 57 Ind. 466. See, also, Meyer v. Hanchett, supra.
878
the commission agreed upon. 1 In an action against the seller, however, upon such a contract, evidence to prove a usage among brokers as to the time when a commission is to be considered earned, was held inadmissible.' An agreement by a person"desiring to purchase land, to convey a part of it to the seUer's broker, cannot be enforced by the broker, if one of the considerations of the agreement was that he would put such person in communication with the seller. 3 Tested by the rules above laid down, there can be no doubt of the correctness of the principal case. M. D. EWELL. Chicago, June 3, 1885. 1 Hupp v. Sampson, 16 Gray, 398; Siegel v. Gould, 7 Lans.li7; Mullen v. Keetzleb, 7 Bnsh, 253. See, also, Redfield v. 1'egg,
I I
Rupp v. Sampson, Bupra. Smith v. Townsend, 109 Mass. 500.
38 N. Y. 212.
In re MoVEY. (Di8trict Oourt, D. Oalf01'nia. April, ]885.) COURTS-MARTIAJ..-JURISDlOTION OF CIVIL COURTS-HABEAS
OaR PUS. Within the sphere of Iheir jurisdiction, the judgments and sentences of courts-martial are as final and conclusive as those of civil tribunals of last resort, and the only authority of tIle ciVil courts is to iuquire }Vhether the military nuthorities are proceeding regularly within their jurisdiction. If they are, tIleY cannot be interfered with, no matter what errors may be committed in the exercise of their lawful jurisdictIOn.
On Habeas Corpus. J. H. Dickinson, for petitioner. Lieut. Col. JJi, Winthrop, Dep. Adv. Gen., for respondent, Major A. M. Randol, First artillery. HOFFlI'IAN, J. The return to the writ shows that the petitioner is a military convict, imprisoned under the sentence of a military courtmartial, regularly convened at Fort Vancouver, Washington Territory. The record of the court-martial shows that the petitioner was tried for having deserted on the thirteenth of April, 1877, from an enlistment made March 12,1877. In his defense, the petitioner pleaded that at the time of his enlistment he was It deserter,. that in 11)75 he had been tried and convicted of a desertion from a previous enlistment; that lJe hall been sentenced to imprisonment and to be dishonorably discharged from service; that he had escaped from custody without recfliving It certificate of discharge and had subsequently made the enlistment j for desertion from which he was on trial. He therefore claimed that under section 1118 of the Revised Statutes, which prohibits t.he enlistment of a "deserter," his enlistment was void, and that he could not be held for the violation Of an engagement prdhibitedbylaw. The court overrule.d the plea, and the petitioner was tried, COnvicted, and sentenced. It is ndt 'denied that, within the sphere of their juriscliction, the judgments and sentences