Vennum v. Gregory

21 Iowa 326

Opinion

Cole, J.

The evidence fully sustains the findings of fact by the court. The only questions for us to determine, are as to the correctness of the legal conclusions or adjudications upon those facts.

i. intersenc'e1ofb‘ damages. The District Court allowed plaintiffs ten per cent per annum interest, upon the excess of the amount received over the. amount paid out, as damages. This was erroneous. The rate of interest is six per cen^ unless a different rate -be agreed upon and expressed in writing. Rev., § 1787. And although interest was allowed in this case as damages, it was not competent for the court to allow more than the legal rate —six per cent. Thrift v. Redman, 13 Iowa, 25; Knapp v. Miller., Id., 596; Myers v. Smith, 15 Id., 181.

fraud?1 compensa The court below required the defendant to refund the money — ten dollars — received by. him of plaintiffs for his services as their agent. This it was competent and proper to do, since the facts found-show defendant was guilty of an intentional gross fraud upon the plaintiffs in the matter of his agency. When the agent is guilty of such fraud upon the principals, in the transaction of his agency, and the .principals are put to the trouble and expense of litigation in order to .secure their rights, it is but just and equitable that the agent shall forfeit his right to compensation for' his services as a penalty for his fraudulent conduct. Story on Agency, §§ 333, 331.

But in this case the court required the defendant to refund to plaintiffs the amount — ten dollars — paid by them to Samuel Holmes, for his services. This was error,-as well as the allowing of ten per cent on the two sums.

The judgment should have been for the plaintiffs for the difference as found by the court, and for the amount paid defendant for his services, and six per cent thereon from date of the receipt thereof by the defendant, up to date of judgment.

Since the defendant made the excess of the judgment one ground for a new trial, thus calling the attention of the court to that particular point, the appellees must pay the costs of this appeal. And if plaintiffs choose, they may remit the excess, and have judgment here for the correct amount. Otherwise the judgment will be

Reversed.