
    JOHN T. WRIGHT v. E. PRICE WELCH, JAMES H. WELCH, ROSIA H. WELCH, HERBERT R. WELCH, AND JAMES MALONEY, LATE PARTNERS UNDER THE FIRM-NAME AND STYLE OF E. P. WELCH & CO.
    At Law. —
    No. 15,085.
    I. When the court is requested to instruct the jury upon a matter in regard to which there is no testimony, the request ought to be rejected.
    II. An agent or servant who is employed at a fixed salary cannot be interested in the profits made out of articles which lie sells to his employers; yet if such employers knew of his interest when they made the purchase, the vendors for whom lie acted cannot escape from their contract to remunerate him.
    STATEMENT OE THE CASE.
    Upon the trial the plaintiff’ introduced evidence tending to prove that early in January, A. D. 1873, he entered into a contract with defendants to act as their agent to sell, in the territory south of the river Potomac, the right to use a patent machine, known as the “E. P. Welch & Co. middlings purifier,” for a commission, of fifteen (15) per centum upon amount of sales made or induced by him, and that he induced the sale of said machine to Haxall, Crenshaw & Co., of Richmond, Virginia, for use in their flouring mills, for the sum of ten thousand dollars, which was paid to defendants in the summer of A. I). 1873, and that defendants had not paid him anything.
    The defendants introduced evidence tending to prove that no contract was entered into between them and plaintiff' for the sale of the right to use said middlings purifier, but for another machine, which was not sold; that during the entire time of the negotiations for the sale of said machine to Haxall, Crenshaw & Co., plaintiff was in their employ as superintendent of their mills at Richmond, Virginia, at a yearly salary, and continued in such employ at said salary until subsequent to their payment for the right to use said machine; that his employer knew nothing about his agency for said machine, nor that he was interested in its sale, and subsequent to the sale requested defendants not to mention the fact of his receiving commission to Haxall, Crenshaw & Co.
    The plaintiff further introduced evidence tending to prove that at and before the time of entering into the employment of Haxall, Crenshaw & Co., he was engaged in the business of milling, and of selling, as the agent for others, decorticators, smut mills', middlings purifiers, burr mill-stones, bolting cloths, and milling machinery and appliances generally, and that, in entering said employment, he reserved the right to continue the conduct of said business, and that some time after the sale of said machine, and before payment by them, he told Crenshaw (since deceased) that he was interested in it, but did not advise him that he was entitled to any commission or benefit from its sale.
    At the close of the testimony the defendant’s counsel asked the chief justice presiding to instruct the jury as follows:
    “ 1st. If the jury find from the evidence that Haxall, Crenshaw & Co. paid plaintiff for all the superintendence and work done by him in and about putting up and running the machinery called the ‘E. P. Welch & Co. middlings purifier’ in said Haxall, Crenshaw & Co.’s mills, then he cannot recover from defendants fifteen per centum upon the amount of sales of said machinery.
    “2d. If the jury find from the evidence that plaintiff entered into a contract with defendants for a commission to induce Haxall, Crenshaw & Co. to purchase defendant’s middlings purifier for use in their flour mills, and at the time of making the contract and the entire time of its execution he was in the employment of said Haxall, Crenshaw & Co., on a regular salary or wages as ‘head miller’ or superintendent in said flour mills, and requested that said contract with defendants should be kept secret from his said employers, and it was not known to them until after their purchase of said purifier, then said contract is void.” Which said j ustiee granted with the following qualification : “ Unless they further find that a reservation of his right, notwithstanding such employment, to conduct his private business, covered the right to sell such machinery on commission to them as well as other persons.”
    To which qualification defendants, by their counsel, excepted, and also excepted to the refusal of the court to give the instruction first asked as above.
    The. jury found a verdict in favor of the plaintiff for $l,50Si. with interest. A motion was made upon the minutes of the-justice for a new trial and overruled. The case is now. hereupon a bill of exception to the aforesaid instructions.
    
      Hugh T. Taggart and Samuel C. Mills, for plaintiff.
    Plaintiff’s right to be “interested” does not appear to have • been questioned, as it seems reasonable to suppose it would have been had such interest been inconsistent with the terms, of his employment by said Haxall, Crenshaw & Co. If they recognized his right, the propriety of it can surely not be objected to by the defendants.
    It does not appear from the evidence that the plaintiff bad any superintendence over the work of “ putting up or running the machinery called the E. P. Welch & Co. middlings purifier in Haxall, Crenshaw & Co.’s mills.” On the contrary, if the agreement between said firm and the defendant is to be considered as a part of the bill of exceptions, it appears that the machine was to be put up at the cost of said! Haxall, Crenshaw & Co., “but according to the instructions and under the supervision of the parties of the second part, or their millwright.”
    There was no foundation in the testimony for such prayer.. The defendants could be injured in no way by its rejection, and it was properly refused. (Greenleaf’s Lessee v. Birth, 5 Pet., 132; Catts v. Phalen, 2 How., 376.)
    The second instruction asked was properly refused. The court was requested to arbitrarily charge the jury that the state of facts assumed, if true, constituted a bar to the action, upon the theory apparently that the contract was against public policy, and therefore void.
    This would, however, depend solely upon the question whether the agreement was inconsistent with plaintiff’s original employment, or involved the doing of an act prejudicial to the interests of his original employer, and it is well settled that the question whether such employments are inconsistent is one of fact for the jury. (Wood’s Law of Master and Servant, 199, and authorities cited.)
    The prayer, as amended, substantially placed the matter in this light before the jury.
    The questions presented were clearly and plainly questions of fact for the jury, and must be considered as concluded by the verdict. (Hogan v. Kurtz, 4 Otto, 176.)
    The judgment of the Circuit Court ought to be affirmed.
    
      Bradley & Hine, for defendants.
    It being a conceded fact that the plaintiff below was the fac totum quoad the mill of Haxall, Crenshaw & Co., in Richmond, Va., charged with seeing that the best machinery which could be obtained should be employed in the said mills, and receiving an annual stipend for his services, could not lawfully make a contract with defendants below to receive from them fifteen per cent, of the amount of sales of their patent, made by them to Haxall & Co., through plaintiff, as the active agent of Haxall & Co.
    And they will rely on Paley on Agency, vol. 28, Law Library, pp. 15, 16, and notes; Massey v. Davis, 2 Vesey, Jr., 317, and notes; Raizin v. Clarke, 41 Md.; Fish v. Leser, 69 Ill.; and for the general principle, Michoud v. Girod, 4 How., 503, et seq.
    
    
      There is not in the record a scintilla of proof on which the qualification of the second prayer rested. On the contrary, it is stated in terms that this transaction was to be kept concealed from the knowledge of Haxall & Co., the employers of the plaintiff.
    The proof is, that instead of coming within the category of the business which plaintiff was allowed to transact with other persons, and in the absence of any proof that he was to be allowed to transact such business with his employers, there is this clear proof that his interest in this purchase was to be concealed from them.
   By the. Court :

When the court is requested to instruct the jury upon a matter in regard to which there is no testimony, the request ought to be rejected. This was the difficulty with the first prayer requested by defendant’s counsel, and as the record fails to disclose any evidence to which it could be applied, we think it was properly refused.

Whether the second instruction ought to have been refused, or given as qualified by the court, depends upon the evidence in regard to the consent of the plaintiff’s employers, that he might continue to carry on his business as an agent for the sale of milling machinery and apparatus. When he was first employed by Haxall, Crensbaw & Co., he was engaged in that business, and he introduced evidence at the trial to show that he reserved the right to continue the same on his own account, notwithstanding his employment by that firm. On the other hand, the defendants introduced evidence to show that Haxall, Crenshaw & Co. knew nothing about his agency, or that he was interested in the sale of the machine in question. Here was clearly a conflict of testimony to be submitted to the determination of the jury. And this was just what the instruction as qualified did. It may be conceded that an agent or servant who is employed at a fixed salary cannot be interested in the profits to be made out of articles which he sells to his employers. Tet if the latter knew of his interest when they made the purchase, the vendors certainly have no reason to complain, nor have they any right to escape from their contract to remunerate him. The instruction as qualified embodies this principle and was properly given to the jury.

New trial denied.  