HON. CHARLES ANDREWS, HON. CHARLES A. RAPALLO, HON. THEODORE MILLER,

v.

James MURRAY, Appt., William H. BEARD et al., Respts. * A, learning that B was about to advertise for bids for furnishing certain articles, induced each of several dealers separately to promise him a commission on his securing a sale from such dealer to B. A did not inform any one of such dealers of the name of the intending purchaser, or that the sale was to be by competitive bidding, or that he had effected a similar understanding with other dealers. Thereafter A himself and several of said dealers submitted bids, and A brought suit for commission against the dealer who obtained the contract. Held, that he was properly nonsuited; that there was no consid

eration for the promise to pay him a commission; and that the agreement therefor was void by reason of the fraudulent suppression of material facts on his part, and as contra bonos mores.

(Decided June 1, 1886.)

APPEAL from a judgment of the General of the City Court of Brooklyn, affirming a judgment dismissing the complaint in an action for services. Affirmed.

The facts are stated in the opinion. Mr. Henry D. Hotchkiss, for appellant: The agreement between the plaintiff and defendants was not invalid. The case is manifestly distinguishable from that of People v. Lord, 6 Hun, 390, and is within Marsh v. Russell, 66 N. Y. 288; Dutch v. Harrison, 5 Jones & S. 306; Jones v. North, L. R. 19 Eq. Cas. 426. Agreements in restraint of free competition at public sales and the like are held void, because they operate as a fraud upon another person.

People v. Lord, supra, 394.

*A motion for reargument is pending herein, the result of which will be duly reported in case it in any way changes or modifies the reasoning or result of the present opinion. [ED.]

HON. ROBERT EARL,

HON. GEORGE F. DANFORTH, HON. FRANCIS M. FINCH. State Reporter.

Curtis v. Gokey, 68 N. Y. 300.

The agreement between these parties was not intended, nor could it have had any tendency, to reduce the number of bidders or prevent the work from being let to the lowest bidder.

See Kearney v. Taylor,15 How. 494 (56 U. S. bk. 14, L. ed. 787).

ties joint bidders; and a joint proposal, the reThe agreement, at the most, made the parsult of honest co-operation, although it might lessen competition, is not an act forbidden by prevent the rivalry of the parties and thus public policy.

Atcheson v. Mallon, 43 N. Y. 151.

In the cases of Doolin v. Ward, 6 Johns. 194, and Wilbur v. How, 8 Johns. * 444, the opinions were per curiam, and not well considered.

These decisions have been greatly modified by the later cases.

Kearney v. Taylor, 15 How. 494-519; (56 U. S. bk. 14, L. ed. 787-797).

The above decisions are distinguished from the present case in Marsh v. Russell, supra.

No matter how slight the service performed by the plaintiff, such service was good consideration for the defendants' promise to pay.

Lampleigh v. Brathwait, 1 Smith, Lead. Cas. Part 1, * 222.

9

Messrs. Morris & Pearsall, for respondents:

In order to entitle plaintiff to recover, he should prove his authority to act for defendants and that his agency was the procuring cause of the sale; i. e., that he discovered the purchaser, started the negotiations between the parties and closed the bargain as the result of his agency.

Stillman v. Mitchell, 2 Robt. 523; Chilton v. 33

Plaintiff does not even prove that he first called defendants' attention to the matter; and therefore it was proper for them to act as they did.

Wylie v. Marine Nat. Bank, 61 N. Y. 415; Fraser v. Wyckoff, 63 N. Y. 445; Sibbald v. Bethlehem Iron Co. 83 N. Y. 378.

The arrangement, as alleged by plaintiff, for both parties to bid the same amount, was void as being against public policy, there being no valid consideration on plaintiff's part for the payment to be made him.

Doolin v. Ward, 6 Johns. 194; Wilbur v. How, 8 Johns. *444; Woodworth v. Bennett, 43 N. Y. 273; Atcheson v. Mallon, 43 N. Y. 150.

Ruger, Ch. J., delivered the opinion of the court:

The claim in this case presents a novel industry and one which, if successfully carried out, would seem to become the source of profit to its prosecutors without much expenditure of time or money.

The plaintiff, a timber broker, learning that the Hamburg American Packet Company was about to build a pier requiring a large number of piles in its construction, and to advertise for bids from timber merchants to supply them, visited the several dealers in such materials in New York and Brooklyn and obtained prices therefor; and, under the inducement that he would act for them respectively in securing a sale of piles, obtained promises from each that if he secured a sale for such dealer, he should receive a commission of twenty-five cents on each pile sold. He did not inform the dealers of the name of the intending purchaser, or of the fact that a contract could be obtained only by competitive bidding, or that he had effected a similar understanding with other dealers.

The company soon thereafter issued proposals for the supply of the piles and sent invitations to dealers generally, among whom were the defendants, to compete for a contract for the piles required.

A number of persons, among whom were the plaintiff, the defendants and other dealers, submitted bids for such contract, and after a canvass of such proposals by the company's engineer, he awarded the contract to the defend

ants.

The defendants having refused to pay the plaintiff's claim for commissions, this action was brought to recover them.

Upon the trial, the plaintiff was nonsuited by the court below, upon the ground that there was no consideration for the promise to pay commissions.

We think the judgment was properly ordered upon that ground, and that it can also be sustained upon the ground of the fraudulent sup pression of material facts by the plaintiff in 34

The plaintiff, while assuming to act for the defendants in obtaining the contract of sale, was in fact under equal obligation to competing dealers to assist them in effecting the same sale. Thus, if the plaintiff's services could bave been of advantage to anyone he was under the necessity of being treacherous to one employer or another. An agent is held to uberrima fides in his dealings with his principal; and if he acts adversely to his employer in any part of the transaction, or omits to disclose any intent which would naturally influence his conduct in dealing with the subject of the employment, it amounts to such a fraud upon the principal as to forfeit any right to compensation for services. Story, Agency, SS 31, 334; Story, Eq. Jur. 315; Ewell, Evans, Agency, 268; Dunlap, Paley, Agency, 105, 106; Carman v. Beach, 63 N. Y. 97, 100.

It is an elementary principle that an agent cannot take upon himself incompatible duties and characters or act in a transaction where he has an adverse interest or employment. New York Cent. Ins. Co. v. Nat. Prot. Ins. Co. 14 N. Y. 85; Ewell, Evans, Agency, 14; Green wood v. Spring, 54 Barb. 375; Neuendorf v. World Mut. Life Ins. Co. 69 N. Y. 389.

In such a case he must necessarily be unfaithful to one or the other, as the duties which he owes to his respective principals are conflicting and incapable of faithful performance by the same person.

The plaintiff in this case was a bidder for the same contract; and if he succeeded in obtaining it himself and had not the piles to fulfill it, he was under equal obligations to several different persons to employ their piles in its performance. Some or all of his principals must have been disappointed by him and he would have been under the necessity of violating his obligations to some of his employers. Such conduct is violative of the plainest principles of morality and fair dealing and cannot be sustained by a court of justice.

Neither does the proof show that he rendered any service to the defendants in effecting the sale. His situation rendered him incapable of serving the defendants to advantage, even if he had desired to do so; but the evidence fails to show any effort on his part to sell the defendant's property. He did attempt to sell his own property or secure the contract for furnishing piles, but whether this was done for the defendants' benefit or not does not appear.

As we have seen, he was under contract obligations to others as well as to the defendants; and it does not lie in his mouth to allege that he intended to defraud others for the benefit of defendants. There was no evidence showing a performance by the plaintiff of the obligations of his contract with defendants, and he was therefore properly nonsuited on the trial. The judgment should be affirmed.

All concur.

NEW JERSEY. COURT OF CHANCERY.

John WYCKOFF, Complainant,

v.

Alfred GARDNER et al., Exrs.

1. Payment by one surety on a sheriff's bond, of the amount of a judgment recovered thereon, under a statutory order directing the prosecution of the bond, and enforced by execution, will entitle him to contribution from his solvent cosureties.

2. The estate of a deceased cosurety is liable to make contribution, whether he died before the liability arose or after. 3. Where the surety seeking contribution holds a claim against the principal, he need not realize thereon in the first instance, but may proceed against his cosureties at once, and if he does realize anything on the claim he must share it with the cosureties who

have contributed.

4. The surety seeking contribution need not make demand, nor give notice, before filing his bill.

5. A discharge in bankruptcy, prior to the accruing of the liability on which contribution is sought, will not avail a cosurety sued for contribution.

(Filed September 24, 1886.)

BILL filed by a surety on a sheriff's bond to

obtain contribution from his cosureties. The facts are stated in the conclusions of the Vice Chancellor.

Mr. L. De Witt Taylor, for complainant. Mr. W. H. Morrow, for executors of Wm. Gardner, deceased.

Mr. J. G. Shipman, for executors of Jos. Vliet, deceased.

Bird, V. C., filed the following conclusions: John Gardner was elected sheriff in 1875. He gave bond with William Gardner, John Wyckoff, Samuel Frame, Joseph Vliet and Joseph B. Cornish, as his sureties thereon. He entered upon the duties of his office. April 19, 1877, W. obtained a judgment against five persons for $1,152.63, and costs $87.11. An execution was issued thereon and placed in the hands of said John Gardner as sheriff. The money was not made, although from no want of goods. The sheriff was in fault. His bond was prosecuted, and February 19, 1884, judgment was entered thereon against John Gardner, John Wyckoff (the complainant), and Samuel Frame. Prior to this action, William Gardner and Joseph Vliet had died and Joseph B. Cornish had been discharged in bankruptcy. The judgment on the bond fixed the damages and costs of W. at $1,727.28. Execution issued thereon and the complainant, one of the defendants in that suit, paid to the sheriff in discharging that writ, $1,805.33. This bill has been filed by the complainant to compel the executors of the last will of William Gardner, and the executors of the last will of Joseph Vliet, to contribute, one third each of the amount so paid by him. John

Gardner, the principal, and Samuel Frame, one of the sureties, are shown to be insolvent.

It is first ojected that there is no amercement against the defendants in the action on the bond, but only a judgment, although there was actually an order for an amercement signed. It seems quite clear to my mind, after reflection, that the judgment and execution and payment of the amount thereof are quite enough to sustain the cosurety who asks for contribution.

The bill alleges that an order was made directing the prosecution of the bond according to the statute. The answer neither admits nor denies the truth of the allegation. It is objected to as a decree because the said order is not produced and proved. If such proof were essential in a proper case, after judgment, I conclude that the answer is not of a character to put the complainant to proof.

The

section of the Act (Revis. 1100) has not been Then again, it is objected that the twelfth complied with, in entering the judgment. However this may be, it is not a void judgment. It may be irregular. It is a judgment on the bond given by the sheriff who was in default. It plainly determines the liability of him and his sureties who were joined in the action. solvent surety so joined was bound, and was obliged to pay and did pay. This being done, and the proof being clear as to the relations of the parties, a claim accrued to him against his cosureties. This was according to their contract. The mutual agreement in every such case is that if one pays, all the rest will contribute. Brandt, Suretyship, SS 246, 247.

It is urged that the bill is defective as to par

ties, in not bringing in the executors of Will

iam Gardner, as individuals as well as executors, and in not bringing in the administrator of a deceased legatee, instead of the legatee. It seems to have been settled that the estate of a deceased cosurety is liable to contribute whether he died before the liability arises or after. Brandt, Suretyship, § 246.

This view of the case applies alike to the executors of William Gardner and of Joseph Vliet.

It is also objected that this complainant holds a judgment which was recovered in favor of John Gardner, the principal debtor, which is of value and which the complainant has not applied as he should towards the reduction of the claim, now before the court. The evidence does not make it clear that the judgment is of any considerable value. But it seems that the complainant is not obliged in the first place to realize on such judgment. According to the weight of authority, he may proceed against his cosurety at once, and if he does realize anything, he must share it with those who have contributed. Brandt, Suretyship, § 238.

Still another objection is, that the complainant made no demand and gave no notice before filing his bill. This objection is not sustained by the authorities. Brandt, Suretyship, § 257.

The point was made that the discharge in bankruptcy of Joseph B. Cornish could not avail him in this suit, because the liability in this case did not accrue until after his discharge and, consequently, was not provable. As I read the cases, this is the law. Brandt, Suretyship, § 240 and references in note. Bump, Bankr. 6th ed. § 524. Glenn v. Howard, 2 Cent. Rep. 643.

In that case, the court held That where the subscription price of the stock of an incorporated company is only to be paid in such installments and at such times as it may be called for, and at the time of the bankruptcy of a stockholder, and his discharge in bankruptcy, no call for the payment of his subscription has been made, a call subsequently made for an unpaid installment thereof is not a provable claim against the bankrupt's estate in the bankruptcy proceedings; therefore the bankrupt's discharge is no bar to an action for such unpaid installment." Many cases are referred to in the opinion in this case, among others that of Riggin v. Maguire, 15 Wall. 549 [82 U. S. bk. 21, L. ed. 232], in which Mr. Justice Bradley, says: "But the better opinion is that as long as it remained wholly uncertain whether a contract or engagement would ever give rise to an actual duty or liability, and there was no means of removing the uncertainty by calculation, such contract or engagement was not provable under the Act of 1841." I can perceive of no method by which to take the case of Mr. Cornish out of these decisions. I therefore conclude that he is liable to contribute as cosurety.

It follows that the executors of Mr. Gardner, the executors of Mr. Vliet, and Mr. Cornish, must join in relieving the complainant. They will each be charged with one fourth of the amount paid by the complainant, with interest on such one fourth from the time of payment. But Mr. Cornish is not a party and no steps can be taken against him to compel payment. The others will pay one fourth each, and each will pay one half of the costs. I make this disposition as to costs, because it was the duty of each to share his part of the burden without suit.

I will so adrise.

Nora E. COUDERT, Complainant,

v.

Louis L. COUDERT et al.

1. Every last will made when testator had no issue living, wherein any issue he might have is not provided for or mentioned, shall be void if, at the time of his death, he leave a child or children or issue, or leave his wife enceinte of a child or children which shall be born; and such testator shall be deemed to die intestate.

2. On the death of a purchaser of real estate, who had assumed the payment of an outstanding mortgage thereon securing a debt created by another, the land, and not the personal estate of the decedent, is primarily liable.

Bird, V. C., filed the following conclusions: The complainant is the widow of Lewis L. Coudert, who died in 1882, leaving a will, in which he gave, after the payment of his debts, all the rest, residue and remainder of his estate, real and personal, to the complainant "for herself and her heirs, absolutely and forever." It was dated and executed March 26, 1864. They had issue, seven children, five of whom are still living and were born after the making of said will and without any provisions for them in said will. Although one child was born prior to the date of the will, it died before such date; so that the testator had no child living at the time he made the will. It would therefore appear that the testator died intestate. See Revis. 1246, § 20.

At the time of his death the husband owned real estate which, when he took the title, was incumbered by a mortgage for $8,000, which mortgage he expressly assumed the payment of as part of the purchase money. The complainant, believing herself to be the owner of the land, as devisee under said will, April 1, 1884, paid said mortgage out of her own moneys, there being due thereon $8,880.44. She alleges that since then she has learned that her husband died intestate and that said lands descend to his heirs at law. Nothing else is shown.

The complainant asks the court to declare that the money so paid by her in discharge of said mortgage shall be a lien upon said lands and that the lands shall be sold to pay and satisfy her for the sum so paid. Can this be done as the case is made? It must be remembered that three or four of the defendants are infants and that it is the first duty of the court to deal in strict justice as to them, protecting their rights on every hand.

It will be seen that the debt or obligation became a personal one; Mr. Coudert by his assumption and promise to pay, made it so. Although the mortgage remained a lien on the land, and the maker of the bond was not discharged, still, under the law, Mr. C. was primarily liable. The debt was thus made a simple contract debt. Klapworth v. Dressler, 13 N. J. Eq. 63, and cases cited.

To the same effect is Hoy v. Bramhall, 19 N. J. Eq. 563; Stillman's Exrs. v. Stillman, 21 N. J. Eq. 126.

It will not be denied that Mr. C. could have been compelled to pay the amount due out of his personal estate. So, too, an action would lie on his promise against his administrator.

Therefore the debt became personal. Mr. C. became personally liable. And the rule is almost universal that the personal estate of the decedent is first liable to discharge his debts. This is admitted in every case and in every book, where the question has been discussed. Yet it has been held that when the debt is not created originally by the decedent, but by another, and a mortgage on land is given as security and the decedent assumes and promises to pay it, then the personal estate is not first liable.

This doctrine was announced by Chancellor Kent, in Cumberland v. Codrington, 3 Johns. Ch. 229, following the English authorities to which he refers. And the same doctrine has been declared in this State, in McLenahan v. McLenahan, 18 N. J. Eq. 101.

Although neither the case decided by Chan