
    Frederick W. Carruthers, Respondent, v. Julia Diefendorf, Appellant.
    
      Real estate agent — he is concluded, by charges in accounts rendered — he cannot thereafter recover a further sum — he must account for the difference between the-amounts charged and paid for insurance and for janitoi'’s services.
    
    A real estate agent, appointed to,take charge of apartment houses, without any special agreement as to compensation, who renders to his principal monthly statements, in which he credits himself with a five per cent commission upon the gross amount collected as compensation for his services, is not entitled to recover, upon quantum meruit, a further sum upon the ground that the five per cent only represented his charge for renting the property and collecting the rents and did not include services rendered by him in connection with the-making of repairs, placing of insurance, hiring janitors and other employees or for purchasing supplies.
    
      Semble, that the real estate agent must account to his principal for any profit he-may have made in insuring the apartment houses and in employing janitors therefor.
    Appeal by the defendant, Julia Diefendorf, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 30th day of October, 1900,. upon the report of a referee.
    
      Arthur P. Hilton, for the appellant
    
      Wilham G. Cooke, for the respondent.
   Sewell, J.:

This controversy grew out of the employment by the defendent of the plaintiff as a real estate agent to take charge of six apartment houses in the city of Brooklyn.

The plaintiff made leases, collected rents,, caused repairs to be made, effected insurance, employed janitors, purchased coal and other'supplies, and paid interest and taxes from January 1, 1891, to December 20, 1897. There was no express agreement between the parties as to compensation. The plaintiff deposited tlie moneys collected in his own name, and rendered monthly statements of the amounts collected, and the sums claimed to have been paid by him' to mechanics and others for repairs, salaries and insurance. The plaintiff credited himself in each of the statements with the amounts appearing to have been expended, and with the amount charged for ■ his services, which was stated to be five per cent commission upon the gross amounts collected. The balance was credited tó the defendant’s general account.

This' action was brought to recover a balance claimed to be due in December, 1897, when the defendant discharged the plaintiff.

It appears from the undisputed evidence that the plaintiff misstated the amounts paid out by him; that he actually paid for repairs $1,748.89 less than the amounts set forth in the various statements or accounts rendered, and that the amounts paid for insurance and to janitors were less than the amounts credited and retained by him. .

The referee found that the plaintiff should be charged with the $1,748.89 which he had illegally retained, but refused to hold that he was chargeable with the difference between the amounts charged and paid for insurance and the services of a janitor. He also found that the plaintiff was entitled to be credited with the amount claimed in the complaint and the sum of $1,750 “allowance on quantum meruit for supervision, etc.,” and directed judgment in favor of the plaintiff and against the defendant for the difference between the amounts charged and credited.

We are unable to discover any sufficient reason for allowing the plaintiff to act for his Own benefit in insuring the property and hiring a janitor. It is established by the authority of elementary writers and by a long course of decisions that a person employed as an agent in any respect cannot be held to act for his own benefit, and must account to his principal for any profit he may have made in the transaction. (Pom. Eq. Juris. §§ 959, 1075; Whart. Agency, § 238; Kedian v. Hoyt, 33 Hun, 145 ; Gardner v. Ogden, 22 N. Y. 327, 348; Dutton v. Willner, 52 id. 312; Murray v. Beard, 102 id. 505.)

Independent of this consideration, we think that the referee erred in holding that the plaintiff was entitled to recover upon a quantum m,eruit, upon the theory of an implied agreement to pay more than the amount with which he credited himself- in his monthly statements, and deducted from the rents collected.

The statements were in legal effect not only representations on the part of the plaintiff of the accuracy, validity and honesty of every item, but were notices to the defendant of his willingness to do the work mentioned or referred to for a commission of five per cent upon the rents collected. Each of the statements amounted to an assertion by the plaintiff that he charged no more, and that he had retained that sum in full payment of the amount due for services therein mentioned. t The evidence' of the plaintiff upon this question is as direct and positive as his conduct. He testified that he made no charges for any services in connection with the making of repairs, placing insurance, hiring janitors or other employees, or for purchasing coal or other supplies; that two and one-half per cent for collecting and two and one-half per cent for renting paid him for all of . those services; The plaintiff put his own interpretation upon his duty under his general employment, and a value upon his services which was assented to and paid by the defendant. Whether the value so fixed was high or low, whether unreasonable or more than a just compensation for the plaintiff’s services, each party is now precluded from making any different claim. That the plaintiff erroneously supposed that he could defraud the defendant out of an additional sum is not such a mistake as to make the subject of compensation a matter of investigation in this action.

The judgment should, therefore, be reversed and a new trial granted, costs to abide the event.

Goodrich, P. J., Woodward, Hirschberg and Jerks, JJ., concurred.

Judgment reversed and new trial granted, costs to abide the event.  