Smith v. Townsend

Massachusetts Supreme Judicial Court

Smith v. Townsend

109 Mass. 500

CourtMassachusetts Supreme Judicial Court

DecidedMarch 15, 1872

StatusPublished

Cited by23 cases

This text of 109 Mass. 500 (Smith v. Townsend) is published on Counsel Stack Legal Research, covering Massachusetts Supreme Judicial Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

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

Pincite

Opinion

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 [502]*502by 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.

Free access — add to your briefcase to read the full text and ask questions with AI

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 [502]*502by 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.

Cite This Page — Counsel Stack

Bluebook (online)

109 Mass. 500, Counsel Stack Legal Research, https://law.counselstack.com/opinion/smith-v-townsend-mass-1872.

Opinion

Related

Cite This Page — Counsel Stack