tion antagonistic to his interests. This case presents, however, the question whether, conceding that the plaintiffs could not recover their commissions from the owner of the real estate, they may not recover those they claim to be entitled to from the defendant, as he knew fully, at the time of entering into his contract, the relation in which the plaintiffs stood to the third party. It was the duty of the plaintiffs to get the highest price for the real estate that could be obtained for it in the market; while the contract between the plaintiffs and the defendant was an inducement to the plaintiffs to effect a sale to the defendant, even if it was on lower terms than might have been obtained from others, because they thereby secured their commissions from both parties. It was therefore an agreement which placed the plaintiffs under the temptation to deal unjustly with the owner of the real estate. Walker v. Osgood, 98 Mass. 348. Contracts which are opposed to open, upright and fair dealing are opposed to public policy. A contract by which one is placed under a direct inducement to violate the confidence reposed in him by another is of this character. If the plaintiffs were guilty of injustice to the owner of the real estate, by placing themselves under an inducement to part with it at less than its full market value, they should not be allowed to collect the promised commissions on the sale of the stock, which was the consideration for which they put themselves in such a position. No one can be permitted to found rights upon his own wrong, even against another also in the wrong. A promise made to one in consideration of doing an unlawful act, as to commit an assault or to practice a fraud upon a third person, is void in law; and the law will not only avoid contracts the avowed purpose or express object of which is to do an unlawful act, but those made with a view to place, or the necessary effect of which is to place a person under wrong influences, and offer, him a temptation which may injuriously affect the rights of third persons. Nor is it necessary to show that injury to third persons has actually resulted from such a contract, for in many cases where it had occurred this would be impossible to be proved. The contract is avoided on account of its necessarily injurious tendency. Fuller v. Dame, 18 Pick. (Mass.) 472. We are of opinion, therefore, that the judge who presided at the trial erred in the instruction given, and that the defendant was entitled to an instruction substantially like that asked for. Nor can the ruling be sustained upon the ground suggested at the bar, that the plaintiffs were middle-men only, bringing the parties together and doing nothing further, the parties themselves making the contract. In Rupp v. Sampson, 16 Gray (Mass.) 398, the plaintiff was permitted to recover, not for services rendered to the defendant as a broker, but for the performance of a certain specific act, namely, the introduction of the other

party to him, the parties after such introduction making their own contract. It was there held that this was not such a fraud upon the other party, who also paid for the services of the plaintiff in introducing him, although concealed from such party, as to make the contract of the plaintiff with the defendant void for illegality. That, however, is not the present case.

It here appears, by the bill of exceptions, not only that there was evidence that the plaintiffs introduced the parties, but that, through the instrumentality of the plaintiffs, the exchange was effected, and that in effecting such exchange the plaintiffs acted as brokers for both parties. It is to be observed also, that both the instructions asked for by the defendant and those given by the presiding judge proceed upon the ground that the plaintiffs were brokers and not middle-men only. Exceptions sustained.

Assumpsit for money had and received. Judgment for plaintiff. Defendant bought a horse of one Seaver for $65, and agreed that if the horse sold for more than $65, he would divide that profit with Seaver. Defendant then had $80 of plaintiff's money with which to buy that horse, and was to buy it as cheaply as possible and receive one dollar for his services. Defendant told Seaver he had sold the horse for $80, and gave Seaver $7.50, keeping $7.50 for himself. Judgment for $6.50 and interest.

TENNEY, J. The case was put to the jury upon evidence introduced by the plaintiff alone. It appeared that he placed in the hands of the defendant the sum of $80, and requested him to obtain a certain horse. The defendant was restricted, in the price to be paid, to that sum, and was to procure the horse at a less price, if he should be able to do so, it being agreed that the defendant should receive the sum of $1.00 for his services in purchasing the horse. He obtained the horse and delivered him to the plaintiff, who received him and disposed of him the same day. The defendant represented to the plaintiff, that he had saved nothing for himself. It appears by other testimony that the price paid for the horse by the defendant did not exceed the sum of $72.50.

If the defendant made a valid contract with the plaintiff, to do the service requested as an agent, and did do it as was agreed, he was not at liberty to make a profit to himself in the transaction, in which he was

acting as the agent; and whatever sum remained in his hands, after paying the price of the horse, deducting the compensation to be made to him, was the money of the plaintiff, for which the equitable action of money had and received could be maintained. The instructions to the jury were consistent with these principles, and a verdict was rendered for the plaintiff.

Exceptions overruled.

AN AGENT IS NOT DIRECTLY LIABLE ON AN INSTRUMENT HE EXECUTES WITHOUT AUTHORITY IN

ANOTHER'S NAME

PATTERSON V. LIPPINCOTT

See Contracts, page 67.

AN AGENT WHO HAS THE PROCEEDS OF AN ILLEGAL SALE BELONGING TO HIS PRINCIPAL

MUST PAY IT OVER

BALDWIN BROTHERS V. POTTER

46 Vt. 402 (1874)

Assumpsit. Judgment for plaintiffs. Defendant appeals. Defendant, as plaintiffs' agent, sold prize packages of candies and collected the price. Defendant refused to account for the moneys or for samples of the prizes intrusted to him, and defended upon the ground of the illegality of the transaction.

PIERPONT, C. J. We do not find it necessary in this case to consider the question as to whether the contract for the sale of the property referred to, by the plaintiffs, to the several persons who purchased it, were contracts made in violation of law, and therefore void, or not. This action is not between the parties to those contracts; neither is it founded upon, or brought to enforce them. If those contracts were illegal, the law will not aid either party in respect to them; it will not allow the seller to sue for and recover the price of the property sold, if it has not been paid; if it has been paid, the purchaser cannot sue for and recover it back. The facts in this case show that the purchasers paid the money to the plaintiffs, not to the plaintiffs personally, but to the defendant as the agent of the plaintiffs, authorized to receive it. When the money was so paid it became the plaintiff's money, and when it was received by the defendant as such agent, the law, in consideration thereof, implies a promise, on the part of the defendant, to pay it over

to his principals, the plaintiffs; it is this obligation that the present action is brought to enforce: no illegality attaches to this contract. But the defendant insists that, inasmuch as the plaintiffs could not have enforced the contracts of sale as between themselves and the purchaser, therefore, as the purchaser has performed the contracts by paying the money to the plaintiffs through me, as their agent, I can now set up the illegality of the contract of sale to defeat an action brought to enforce a contract on my part to pay the money, that I as agent receive, over to my principal. In other words, because my principal did not receive the money on a legal contract, I am at liberty to steal the money, appropriate it to my own use, and set my principal at defiance. We think the law is well settled otherwise, and the fact that the defendant acted as the agent of the plaintiffs in obtaining orders for the goods does not vary the case. Tenant v. Elliott, 1 B. & P. 3; Armstrong v. Toler, 11 Wheat. 258; Evans v. City of Trenton, 4 Zab. (N. J.) 764.

We think the certificate granted by the county court was properly granted. It has been urged in behalf of the defendant, that the zeal with which he has defended this case shows that he intended no wrong; but we think the man who receives money in a fiduciary capacity, and refuses to pay it over, does not improve his condition by the tenacity with which he holds on to it.

Judgment of the county court affirmed.

AUTHORITY OF AGENT TO EXECUTE MORTGAGE

GARDNER V. GARDNER

5 Cushing 483 (1850)

Action to foreclose a mortgage. It appeared that the name of Polly Gwinn, the mortgagor, was written by her consent, in her presence, by her daughter.

SHAW, C. J. The only question is upon the sufficiency of the execution of a mortgage deed, as a good and valid deed of Polly Gwinn. The execution of the deed is objected to, on the ground that when a deed is executed by an agent or attorney, the authority to do so must be an authority of as high a nature, derived from an instrument under the seal of the grantor. This is a good rule of law, but it does not apply to the present case. The name being written by another hand, in the presence of the grantor, and at her request, is her act. The disposing capacity, the act of mind which are the essential and efficient ingredients of the deed, are hers, and she merely used the hand of another, through incapacity or weakness, instead of her own, to do the physical act of making a written

sign. Whereas, in executing a deed by attorney, the disposing power, though delegated, is with the attorney, and the deed takes effect from his acts, and therefore the power is to be strictly examined and construed, and the instrument conferring it is to be proved by evidence of as high a nature as the deed itself. To hold otherwise, would be to decide, that a person having a clear mind and full capacity, but through physical inability incapable of making a mark could never make a conveyance or execute a deed; for the same incapacity to sign and seal the principal deed would prevent him from executing the letter of attorney under seal.

It appears to us, that the distinction between writing one's name in his presence and at his request, and executing a deed by attorney, is obvious, well founded, stands on satisfactory reasons, and is well sustained by authorities; Ball v. Dunsterville, 4 T. R. 313; The King v. Longnor, 1 Nev. and M. 576, s. c. 4 Barnand Adol. 647; 2 Greenl. sec. 295. We think the deed was well executed by Polly Gwinn; and the judgment must therefore stand for the demandant.

DISTINCTION BETWEEN A GENERAL AND A SPECIAL AGENT

BUTLER V. MAPLES

9 Wallace (U. S.) 766 (1869)

Butler and others, during the late rebellion, were copartners doing business under the firm name of Bridge & Co., at Memphis, Tenn. One Shepherd professed to act as their agent. He had been authorized, by written agreement in 1863, to purchase cotton for them in Desha county, Arkansas, and its vicinity. He was to buy on the best possible terms, paying not more than 30 cents per pound on the average, and it was agreed that he should pay as little as possible on the cotton until it should be delivered on a boat or within the protection of a gunboat. There was also the testimony of one Martin that he had been sent to Arkansas by defendants, Bridge & Co., with money and instructions for Shepherd, the instructions being that he should purchase cotton for the firm, but was not to pay more than from 30 to 35 cents per pound. He might make small advances, but was instructed not to pay the balance of the purchase money, or make it payable, until the firm should be able to send a boat up the Arkansas river for the cotton, and until it was in their possession, weighed and placed on the boat. He was directed to take no risk for the firm of the destruction of the cotton except to the extent of the money advanced.