
    James Poag, Executor of John Muldoon, deceased, v. William Poag.
    A private agent or assignee is not entitled to commissions, unless they are stipulated far in the contract creating the agency. [*287]
    On a bill against an agent for an account, his books are not admissible to prove the sale and delivery of provisions and necessaries to the principal [*287]
    Although the agent in such case may be considered a trustee, and bis transactions regarded with jealousy, yet he will be entitled to credit for notes on his principal, payable to himself during lii's agency, without showing their consideration, unless there be some evidence to impugn them. [*287]
    John Muldoon, the plaintiff’s testator, being a man of weak understanding, and incapable of transacting his own business, gave the defendant a general power of attorney to act for him Under this power the defendant made a settlement with a former agent, took possession of Muldoon’s estate, and for several years managed all his affairs, and during this time occasionally supplied him with provision's and *"other necessaries. On Muldoon’s death, his executor filed this bill for an account.
    On reference before the Commissioner, the defendant claimed commissions on the settlement with the former agent, which the Commissioner refused to allow. He also produced and proved the execution of sundry notes with the testator’s mark to them, payable to himself, for which he claimed credit, but he refused to prove their consideration. The Commissioner refused to credit him with these notes, on the ground, that it was incumbent on him under the circumstances to show the consideration for which they were given. The defendant then offered in evidence an account book, in order to prove the delivery of certain necessaries, which, as he alleged, were there charged. This evidence was rejected.
    The Commissioner having made his report on the accounts, the defend ant filed exceptions to it, charging' error in the above particulars,
    
      Chancellor Johnston, before whom the exceptions were argued, at York, sustained the report, and the defendant appealed on the grounds taken below.
    
      Williams, for the appellant,
    in support of the grounds taken, cited and relied on Sinclair v. Kiddle, decided at the last Term, and 1 Mad. 110.
    
      Hill, contra,
    insisted, that commissions could not be allowed on the whole amount which had been settled between the two agents, when but a small sum fell due thereon, and was in fact received by the defendant. That, as regards the notes, the defendant was a trustee, and not permitted to contract with his cestui que trust; and all contracts between them should be avoided, unless the trustee shows that he has dealt fairly; and the circumstances well justified the Commissioner in rejecting the notes. 1 M’C. Ch. 389 ; 4 Eq. Rep. 103 ; 1 Yes. 418 ; 2 John. Ch. Rep. 252; 6 Yes. 631; 2 Sch. & Lef. 492. The account book was properly rejected, according to the common rules of evidence.
   *Harper, J.

The first claim on the part of defendant is, to be allowed commissions on the amount received from a former agent on settlement. This cannot be allowed. Guardians and trustees having the charge and custody of the estates of infants and minors, are allowed commissions by the Act of 1745; 1 Br. Dig. 392, Executors are allowed them by the executor’s act, and factors and some other commercial agents have them by the usages of trade. But a private agent or assignee is not entitled to them unless they are stipulated for in the act or contract by which the agency is created. To this effect was the' decision in the case of - decided by this Court in Charleston, and that of Muckenfuss v. Heath, ante, 182, decided at the same place during the last sitting of this Court.

The next question relates to the admissibility of defendant’s boob, to establish an account for articles sold and delivered to his principal, Muldoon. This certainly does not come under the general rule allowing merchants’, shopkeepers’ and tradesmens’ books to be evidence. It is supposed to be admissible under the decision in the case of Sinclair & Kiddell v. The administrators of Price, decided at this place in December, 1832. That was a peculiar case depending on its own circumstances. There was a mercantile agency for the purpose of selling goods, remitting the proceeds, &c., stress was laid on the circumstance, that the books would have been evidence for the principal against third persons, (which cannot be said here) and the books were offered after the death of the agent, who might have been able to produce other proof if he had been alive. As to this ground also the motion must be dismissed.

We are of a different opinion with respect to the notes which were offered in evidence. It is certainly true that a trustee cannot purchase of his cestui que trust, without being prepared to show that he gave a full consideration, and did not unfairly avail himself of the advantages afforded by his character of trustee. The same rule is applied to other persons, not being strictly trustees but standing in relations of confidence, as to agents. But these persons are certainly at liberty to account with t^eir principals, and to take acknowledgments* or vouchers in relation to the transactions between them. A note given is evidence of an account settled and a balance acknowledged. In such 51 ease as the present, where the principal is shown to have been a weak man, hardly capable of transacting- his own business, such transactions are regarded with jealousy, as in the instance of a guardian settling with his ward just after he comes of age, and slight evidence will be sufficient to throw the burden of proof on the agent. But I see no evidence to impugn the notes in this case. On the contrary they are supported by the testimony of the witness, Jos. S. Poag, who proves the delivery of various articles by the defendant to Muldoon, without being able to specify quantities What conclusion so obvious, as that on account of these the notes were given. And this is an additional reason against admitting the book to prove the account. Notes were given to the number of five, during- the continuance of defendant’s agency, at various times, and the presumption is, that defendant’s charges against his principal were included in these notes. The motion as to this ground of appeal is granted, and defendant’s third exception sustained.

Johnson and O’Neall, Js., concurred.  