Bollman v. Loomis

41 Conn. 581

• Court: Supreme Court of Connecticut
• Decided: November 15, 1874
• Status: Published

Opinion

Poster, J.

The principle involved in this case is doubtless of importance; but the amount involved, pecuniarily, is small; so small, as in our opinion hardly to justify bringing the matter here to be decided.

There was gross duplicity on the part of the plaintiff in acting as the confidential friend and adviser of the purchaser of the piano, and at the same time as agent of the vendor, employed by him expressly to effect a sale.

The party proposing to purchase was deceived. Instead of getting, as he supposed he was, the opinion of the plaintiff as an expert, without bias and without interest, acting merely as a friend, the plaintiff was in fact acting as the agent of the owner, and charging fees for his services. A sale having been effected through his influence, this suit was brought to obtain a compensation.

We think there should be no recovery. We reach this result not out of any regard for the defendant; he is as fully implicated in the deception practiced on the purchaser as the plaintiff himself. The rule in such cases is, that the law leaves the parties where it finds them. The transaction was inconsistent with fair and honorable dealing, contrary to' sound policy, and offensive to good morals.

We do not say that the plaintiff or defendant committed a positive fraud. The plaintiff may have said nothing as to this piano which he did not believe to be true, and the defendant may have demanded and obtained for it no more than it was really worth. But the means resorted to to effect the sale, deceived and misled the purchaser, and were in violation of private confidence. Such contracts and acts are deemed equally reprehensible with positive fraud. They are within the same reason and mischief as contracts made and acts done with an evil intent, and are therefore prohibited by law.

Cases of this character, though differing widely in their details, are unfortunately not rare in courts of justice. In Carter v. Boehm, 3 Burr., 1910, Lord Mansfield said: “ Good faith forbids either party, by concealing what he privately knows, to draw another into a bargáin from his ignorance of that fact and his believing the contrary.” In Chesterfield v. Janssen, 2 Ves., 155, (S. C., 1 Atk., 352,) Lord Hardwicke said: “Fraud may be collected or inferred, in the consideration of a court of equity, from the nature and circumstances of the transaction, as being an imposition and deceit on other persons, not parties to the fraudulent agreement.” In Fuller v. Dame, 18 Pick., 481, Chief Justice Shaw said: The law avoids contracts and promises made with a view to place one under wrong influences; those which offer him a temptation to do that which may affect injuriously the rights and interests of third persons.” And again: “ If such advice and solicitation, thus understood to be pure and disinterested, may be justly offered from mercenary motives, they would produce all the consequences of absolute misrepresentation and falsehood.”

This ease comes within a class of cases described in the books as “ poundage for recommending customers to buy.” The case of Wyburd v. Stanton, 4 Esp., 179, is directly in point. That was an action of assumpsit for goods sold and delivered. The plea was the general issue and set-off. One part of the set-off was for certain poundage and reward before that time agreed to be paid, and then due and payable from the plaintiff to the defendant, upon and in respect of certain goods and merchandise before that time sold and delivered by the plaintiff to one Andrew, for and in consideration of the defendant’s having recommended the said Andrew to buy the said goods and merchandise from the plaintiff. Upon this being stated, Lord Ellenborough said he thought this demand could not be supported. It was a fraud on third persons. It was accordingly rejected.

We think this principle a salutary one, and entirely applicable to this case. There is therefore manifest error in the judgment below.

In this opinion the other judges concurred.