(112 A.)

would not control the right to commission. | rying out his part of the contract. Irons v. The contract of sale was, at best, evidentiary Snyder, 49 Pa. Super. Ct. 522. If defendant's

of the completion of the original undertaking between plaintiff and defendant, to wit, to secure a purchaser and pay commission, and defendant's effort to execute the contract of sale.

breach occasioned the cancellation, it cannot take advantage of its wrongdoing to escape liability. Restein v. McCadden, 166 Pa. 340, 31 Atl. 99; Lindsay v. Carbon Steel Co., 195 Pa. 120, 45 Atl. 683; Aikins v. Thackara Mfg. Co., 15 Pa. Super. Ct. 250. So far as the agent was concerned, the purchaser settled when defendant canceled the agreement and returned the hand money; settlement could then never be made by the purchaser because of defendant's own act. Clark v. Battaglia, Greenblatt v. Fox,

The judgment is therefore affirmed.

[1-3] An agent who acts for an undisclosed principal brings on himself all the consequences usually chargeable to persons acting in such capacity; he may be regarded and charged as the actual principal. An attorney may, by agreement, obligate himself personally to pay broker's commission for the sale 47 Pa. Super. Ct. 290; of real estate for which he is but agent (Lib-59 Pa. Super. Ct. 53. The affidavit does not erman v. Colahan, 267 Pa. 102, 110 Atl. 246), aver that, at the time the negotiations for and a trust company, through an agent, may the sale were going on, plaintiff knew defendso act as to bind itself to pay a broker's com- ant was acting as an agent. mission for the sale of real estate for which it is but agent. In this case we have a promise to be primarily and unconditionally liable. Nowhere, prior to the contract of sale, is it mentioned or intimated that the acts are being done at the instance or for the benefit of another, and the mere fact of the agreement submitted after the work has been accom-' plished does not change the character of the original undertaking, create an agency, or imply knowledge. Plaintiff's statement sets forth an original undertaking and defendant's affidavit raising questions of law was properly denied.

BACHRACH v. FLEMING et al. (Supreme Court of Pennsylvania. Feb. 14, 1921.)

Brokers

31-When secretly purchasing to sell to principal at advance held a trustee.

Where a prospective purchaser employed a broker to ascertain the price at which the property.might be acquired, and the broker reported the price was $90,000, which the purchaser authorized the broker to offer, and the broker for $85,000 and attempted to sell it to the purthen secretly purchased the property himself chaser for $95,000, the broker will be adjudged to hold title for the purchaser, and will be required to convey it to him, since an agent cannot be allowed to make a profit by an adverse purchase, though he used his own means to do so.

Appeal from Court of Common Pleas, Philadelphia County; Horace Stern, Judge.

Suit by Walter K. Bachrach against Ferdinand D. Fleming and others. Decree for plaintiff, and the named defendant appeals. Affirmed.

[4-6] In the affidavit on the merits defendant does not deny that plaintiff did the work and that a commission was agreed upon; it does deny payment depended "upon plaintiff's succeeding in obtaining a purchaser for the said property," and avers sale could only be made with approval of the orphans' court, and no commission would be paid unless the sale was consummated and settlement made therefor; it refers to the agreement with the purchaser to sustain this position; but plaintiff was not a party to the agreement and was not bound by it. Moreover, the letter mentioned above, also relied on by defendant, showed the commission was to be paid on settlement by the purchaser. This would negative the idea that commission was to be paid only when the orphans' court approved the sale. Nowhere is it averred that plaintiff knew of the difficulties attending the transfer of title. The letter made no reference to any proceeding in court, and the only doubt was as to the execution of the contract by the purchaser; but defendant was the defaulting party. That others in interest would SCHAFFER, J. Plaintiff Bachrach, who not join is immaterial to plaintiff; defend- conducts photographic studios in Baltimore ant, having agreed to sell a fee, should have and Philadelphia, was desirous of changing been certain the others would join before the location of his business in the latter entering the arrangement. Ordinarily, where city; his manager there, by his direction, the parties are brought together and deal up-communicated by telephone with the office on terms satisfactory to the owner, the agent of defendant Fleming (appellant), who is a has earned his commission. He does not lose real estate agent, and as a result Dunn, who the right to commission because the owner of was employed by Fleming as sales agent, the land is subsequently prevented from car-called upon plaintiff and arranged that Flem

Argued before FRAZER, WALLING, SIMPSON, ᏦᎬᏢᎻᎪᎡᎢ, SADLER, and

SCHAFFER, JJ.

Paul Reilly, of Philadelphia, for appellant. Jerome J. Rothschild, of Philadelphia, for appellee.

ing's) name, as his own, and admitted that he conferred with Dunn during the negotiations and told him what to do. From the testimony produced before the learned chancellor, the main features of which we have outlined, we fail to see how he could have found other than he did, that Fleming was employed by Bachrach as his agent for the purchase of the property; that he did not act in good faith, but purchased the property, unknown to his principal, in his own name, and attempted to make a secret profit of $10,000. Mr. Justice Stewart, speaking for the court in Bergner v. Bergner, 219 Pa. 113, 67 Atl. 999, summed up the controlling principles of agency in these pregnant words:

ing should endeavor to procure for him as there can be no question. Fleming acknowlsatisfactory property. After this arrange-edged letters written by Dunn, in his (Flemment was made, plaintiff and Dunn looked at the property 1718 Chestnut street, the subject of this litigation, and the latter gave his opinion that it could be purchased for a price in the neighborhood of $100,000; plaintiff instructed him to ascertain the lowest price at which it could be acquired. Some days after this interview, Dunn visited plaintiff in Baltimore, and informed him he thought the property could be purchased for $95,000; whereupon Bachrach gave him a letter, addressed to Fleming, authorizing the latter to make an offer of $90,000, and a few days later received a letter, written on Fleming's stationery, signed with his name, "by A. J. Dunn," in which it was stated that immediately upon his return to Philadelphia"we took up the matter of the purchase of the premises No. 1718 Chestnut street, as per your letter of authorization handed to me on Friday last in Baltimore. We have submitted the proposition as therein contained and it is now being considered and we are expecting to have a reply or counter proposition soon. We will keep you fully advised of developments."

"Agency is a recognized fiduciary relation; its vital principle is good faith, without which the relation could not exist."

That case reiterated the established rule: "An agent to purchase cannot be allowed, except as his principal assents, to purchase for himself. He can acquire nothing by such adverse purchase, even though he contribute of uct will belong to the principal exclusively." his own means or credit to effect it; the prod

Some question was raised in the court below and here as to whether plaintiff, in purchasing the property, was acting for himself individually or for a corporation, Bachrach, Incorporated, in which he was interested; but, upon ample evidence, the chancellor found he was acting for himself. We fail to see why this question should give appel

count, for his faithlessness, by the person he endeavored to overreach; the corporation is asking nothing of him, and, it having had notice of these proceedings, would now be estopped from asserting any rights in the property.

It appears, however, that immediately after receipt of the letter, authorizing the offer of $90,000, Fleming entered into negotiations, on his own account, for the purchase of the property, and executed an agreement with its owners to buy it for $85,000. When negotiations for his. purchase of the property had been completed, Fleming sent Dunn to Baltimore, to try to sell the property to the plaintiff, at an advance of $10,000 over the price he had contracted to pay. On the wit-lant any concern; he is being called to acness stand, Fleming made the categorical admission, "I concealed the price," meaning the price he was paying. His agent, on this visit to Baltimore, persuaded Bachrach to pay the price, $95,000, which Fleming had instructed him to obtain, and, when Bachrach's attorney was summoned to prepare the contract of It is further set up that the final and bindsale, Dunn stated to him that the parties to ing contract between Fleming and the owners the agreement were the plaintiff and a man of the property was not delivered until after named Ansell, who he said represented the the time when Bachrach had terminated apestate to which the property belonged. This pellant's agency, and therefore he can assert excited the suspicion of the purchaser. He no rights under it. Where an agent has brorefused to sign the contract, and, upon subse-ken faith with his principal, and has been disquent investigation, discovered that Ansell had no connection with the owners of the property. He thereupon notified Fleming that his connection with the transaction was at an end. Plaintiff shortly thereafter filed this bill in equity, praying it be adjudged Fleming holds title for and must convey the property to him.

That Dunn was Fleming's fully authorized representative, as found by the court below;

charged from the business in which he was engaged, he may not, after the termination of the agency, reap the profits of his bad faith to his employer's disadvantage; whatever he acquired while acting in the agency flows to his principal.

The court below correctly determined by its decree that appellant, as to the property in question, was trustee for plaintiff.

The decree is affirmed, at appellant's cost.

(112 A.)

"The affidavit of defense raises the question Charles F. Da Costa, of Philadelphia, for as to whether or not Alexander N. Mogab, when appellant. he signed the agreement upon which suit is Horace Michener Schell, of Philadelphia, brought, made himself personally liable." for appellees.

William M. Stewart, Jr., of Philadelphia, In Kleckner v. Central R. R. Co. of N. J., sufor appellant.

pra, we held plaintiff, who, in the nighttime, Lincoln L. Eyre, of Philadelphia, for appel- fell upon a piece of ice which could have been

seen for six feet, guilty of contributory negligence. Here the ridge of ice was visible at WALLING, J. At about 1 o'clock on the a much greater distance. True, where such morning of February 2, 1918, plaintiff, while danger is concealed by snow, as in Slife v. walking eastwardly on the north side of Mar- Dorranceton Borough, 262 Pa. 183, 105 Atl. ket street, near the west line of Thirteenth 39, Llewellyn v. Wilkes-Barre, 254 Pa. 196, street, Philadelphia, fell and was seriously 98 Atl. 886, Gross v. Pittsburgh, 243 Pa. 525,

(112 A.)

90 Atl. 365, and Green v. Hollidaysburg, 236 not concur. The testimony, being contradicPa. 430, 84 Atl. 785, the question of the pedes- tory, it was for the jury, to determine the trian's negligence is for the jury; but that is credit to be given the statements of the not this case. Viewing the case in the light several witnesses. Kennelly v. Waropoyak, most favorable to plaintiff, the verdict can- 266 Pa. 94, 109 Atl. 608. Under these circumnot be sustained. stances, the court did not abuse its discretion. The judgment is affirmed.

The judgment is reversed, and is here entered for the defendant non obstante veredicto.

An order discharging a rule for judgment for alleged insufficiency of an affidavit of defense will not be reversed in doubtful and uncertain cases, but only in such as are very clear and free from doubt.

Appeal from Court of Common Pleas, Phil

Appeal from Court of Common Pleas, Philadelphia County; Joseph P. Rogers, Judge. Action by Frank F. Harmer against the adelphia County; F. Amedee Bregy, Judge. American Railway Express Company. Judg- Action by the Commonwealth Finance Corment for plaintiff, and defendant appeals.poration against Manuel Ferrero and another. Affirmed. From a judgment for defendants, rule for

Argued before FRAZER, WALLING, SIMP-judgment for alleged insufficiency of affidavit SON, KEPHART, SADLER, and SCHAF- of defense having been discharged, plaintiff appeals. Affirmed. FER, JJ.

William A. Schnader, of Philadelphia, for appellant.

Henry J. Scott, of Philadelphia, for appellee.

Argued before FRAZER, WALLING, SIMPSON, KEPHART, SADLER, and SCHAFFER, JJ.

A. E. Hurshman, of Philadelphia, for appellant.

J. Fred Hartman, of Philadelphia, for appellees.

PER CURIAM. Plaintiff, while riding a bicycle north on Broad street, Philadelphia, was injured by a truck belonging to defendant company. The testimony was conflict- PER CURIAM. Plaintiff leased to defending as to the exact manner in which the ants a motortruck. The lease required monthly accident happened. There was testimony payments of $164.51 each, until the amount that plaintiff, while proceeding in advance of $2,665.04 had been paid, at which time the of the truck, was struck in the back by the truck would become the property of defendmachine. Witnesses called by defendant said ants. Plaintiff alleged default in these paythe bicycle was not in front of the truck, ments, and issued a writ of replevin to rebut running alongside of it, and became cover the property. In answer to the statepocketed between defendant's truck and an ment of claim the affidavit of defense denied ash truck, resulting in plaintiff being thrown default and set up irregular payments, on to the ground and the left rear wheel of account of the agreement, of various amounts defendant's truck passing over his leg. The aggregating a greater sum than was due court below in its charge carefully discussed under the lease at the time the writ of rethe conflict in the testimony, and fully ex- plevin was issued and averred these sums plained the questions of defendant's negli- | were paid to plaintiff's agent who was augence and plaintiff's contributory negligence, thorized to receive them. The court below under the facts as testified to by the various witnesses. The verdict was for plaintiff, and defendant's motion for a new trial was overruled.

The only assignment of error is- that the court abused its discretion in refusing to grant a new trial. In this contention we can

discharged a rule for judgment for want of a sufficient affidavit of defense. This court has frequently held that an order discharging a rule for judgment for alleged insufficiency of an affidavit of defense will not be reversed in doubtful and uncertain cases, but only in such as are very clear and free

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