
    Moseley’s Administrators and Heirs v. Buck and Brander.
    Saturday, April 4th, 1812.
    I. Principal and Agent — Purchase of Principal's Land by Agent — Fraud.—If an agent employed to sell a tract of land, become himself the purchaser by bargaining with bis employer, from whom be conceals the fact that a better price could be got from another person, he is guilty of fraud, and the contract ought to be vacated.
    2. Same — Same—Equitable Relief. — In such case the Court of Equity will compel him to recdnvey the land, on receiving back his purchase money, with interest, and make him account for the rents and profits.
    This was a bill exhibited by the administrators and heirs of Benjamin Moseley, deceased, against Buck and Brander, merchants, and partners, to have a contract for the sale of 2,666% acres of military land in the State of Kentucky, rescinded, on the ground of fraud, and the land reconveyed.
    The equity stated was, that the defendants were appointed by the said Benjamin Moseley, and undertook, as his agents, to sell the land in question, for the best price they could get in his behalf, and apply the proceeds to his credit; that he had previously been offered 2s. per acre by Hicks and Campbell, agents for Charles Copland, and having reason to believe they would give more, refused to take it, but, at their special request, promised them the refusal if a. price should be offered which he was disposed to take; that he informed the defendants of this, offer, mentioned his opinion that they would give more than 2s. per acre, and his wish that they should have the refusal; that afterwards, from time to time, the defendants made sundry communications to the said Benjamin, through a certain Robert Kincaid, concerning the said land, in which they constantly stated they had offered the land to Hicks and Campbell, and to various *other persons, and found it impossible to get more than 2s. per acre: they then came forward with a proposal to purchase the land themselves, and the said Benjamin, having confidence in their assertions, was induced to accede to their proposal; that since his death, the plaintiffs had come to the knowledge of a suit brought in the said Superior Court of Chancery by Charles Copland, against the said Buck and Brander, concerning the) said land; from the proceedings in which it appears, and so the plaintiffs charge the fact to be, that the said Charles Copland was accordingly desirous to purchase the said land, and by himself and his agents, Hicks and Campbell, made repeated applications to the said Buck and Brander, for the said land, and expressly informed them, that they were ready to give more than 2s. per acre; that they were desirous of fixing on a price above that sum, but were prevented for doing so by the evasive conduct of Buck and Brander, who, instead of acting the part of faithful agents to the said Benjamin Moseley used very undue means to prevent the said Copland, or his said agents, from purchasing, and at the same time concealed these offers from the said Benjamin, stating to him, untruly, that it was impossible to get more than 2s. per acre; their object being to get the land for themselves at a price less than its value, which conduct of theirs ought, in equity, to avoid their said purchase.
    The defendants, by their answer, admitted their agency for Benjamin Moseley ; but insisted upon the contract for the land; denying all fraud and concealment on their part.
    The bill was supported by the deposition of Charles Copland, (to the same effect, in substance, with his bill against Buck and Brander, 2 Call, 218, 220,) and by a transcript of the bill and answer in that suit.
    The cause coming on tobe heard the 26th day of February, 1811, the following opinion and decree were delivered by CHAN-CEKHOR TAYKOR.
    *!‘The case reported in 2 Call, between these defendants and Charles Copland, does not apply here, as these plaintiffs, or the person they represent were not parties to that suit, in which the Supreme Court only determined, that if these defendants had committed the fraud with which they stood charged, any benefit arising therefrom should not be transferred to Mr. Copland but that Mr. Moseley, on whom the fraud was said to have been principally committed, should be relieved against it. This was correct. But a different construction seems to have been put upon that decision, which, perhaps, has given rise to the present suit; in which the only inquiry is, whether, as stated in the bill, the defendants were offered more than 2s. per acre, and concealed it from Mr. Moseley, at the time of their purchase from him at that price. They deny it in their answer. But the plaintiffs' rely much upon the defendant’s former answer, to Mr. Copland’s bill, to convict them of the alleged fraud. Kct this part of the case be examined. The suit referred to, in which that answer was filed, contained all the evidence (as it appears) that is in this, except the deposition of Mr. Copland. In that suit, the answer was held responsive to the bill, and being not disproved by any evidence in the cause, was very properly taken to be true, against Mr. Copland, and in favour of the defendants: and, as that answer is now relied upon by the plaintiffs, it must be taken all together, and not garbled : and, under the influence of this rule, the effect is as clearly in favour of the defendants in relation to Mr. Moseley, as it has been held in relation to Mr. Copland: and more especially, when considered in connexion with the answer in this case. Here let it be remarked, before the other testimony is examined, that all the defendants undertook to do, was to sell Mr. Moseley’s military land for the best price that they could get, and to give Hicks and Campbell a preference; that, finding that they were steady in their first offer to Mr. Moseley of 2s. per acre, the defendants, through their agent, Mr. Kincaid, made the representation *to Mr. Moseley, and proposed, if it was agreeable to him, to take the land at that price themselves, to which he acceded: and whether this conduct of the defendants deserves to be branded with the epithet of fraud, depends entirely upon the evidence of Mr, Campbell and Mr. Copland. Mr. Campbell proves, that Hicks and Campbell had offered Mr. Moseley two shillings, and that Buck and Brander had promised them a preference in the sale; but that Mr. Campbell did not mean to discover to them that Hicks and Campbell would give more than that price; although Mr. Campbell says that he intended it, if the land had been again offered; but, as it was not in the nature of things for Buck and Brander to know what Hicks and Campbell secretly intended, it was not their duty to renew the offer; and if they had, they might have been deemed impertinent. From this evidence, then, it seems, that the defendants were justified in their representation to Mr. Moseley. But Mr. Copland proves that the defendants were to give him a preference; and that he intimated very plainly, that if Mr. Moseley would not take two shillings per acre, he, Mr. Copland, would give more; and that he is under an impression that the defendants so understood him. But surely this impression of Mr. Copland is incorrect, as he did not say at any time how much more he would give: for after the defendants had made the purchase on their own account, he tendered to them, according to his own statement, only two shillings per acre, as the sum which he had offered. If, then, this was the highest price he had offered, it still seems that the defendants were correct, in saying, through Mr. Kincaid, that they could get no more for Mr. Moseley’s land; and the correspondence with Mr. Kincaid certainly proves it, and proves also, that Mr. Brander acted in a manner as friendly to Mr. Moseley as it was honourable to himself; and Mr. Kincaid’s testimony is in confirmation of it; nay, after the purchase by the defendants, Mr. Brander informed Mr. Kin-caid that if Mr. Moseley was dissatisfied, he should *not be bound. This was the last act by which this transaction was closed, and certainly had nothing like fraud in it. Upon this view of the case, the Court doth adjudge, order, and decree, that the bill of the plaintiffs be dismissed, and that the administrators of the said Benjamin Moseley, out of the goods and chattels of. their testator, in their hands, to be administered, if so much they have, ,if not, then out of their own estates, and the next friend of the infant plaintiffs, pay to the defendants the costs by them, in their defence, expended.”
    From this decree the administrators appealed ; and by consent of parties in the Court of appeals, the heirs were afterwards received as appellants.
    Wickham, for the _ appellants.
    This case is stated substantially in 2 Call, 218-230, Buck and Brander v. Copland. The Court there say that if the fraud was proved, Moseley’s representatives were entitled to the land. I admit this is not authority, because they were not parties to that suit. But the answer in that suit of the present defendant is conclusive evidence that they were guilty of fraud. The general rule is that papers filed in one suit are not to be received as evidence in another, between other parties; but evidence of what a party has been heard to say on his oath is good against him.  If Mr. Buck’s admission in a conversation in the street would be received as evidence against him, .his answer on oath should, a fortiori, be so received. The declarations of the defendants in their letters to Moseley through Kincaid, are in direct opposition to their answer to Copland’s bill. From that answer, and Copland’s deposition, they appear evidently to have been unfaithful agents. The land ought therefore to be decreed to us.
    Williams, contra.
    Their answer to Copland’s bill shows clearly there was no fraud. They no where admit they were ever offered more than 2s. per acre. Copland in his deposition, only says he-insinuated that, if he *could not get the land at 2s., he would give more. This insinuation was not understood by Buck and Brander. The only means for them to divine that he would give 2s. 6d. was Campbell’s declaration that Hicks and Campbell would give as much as any body else. Moseley himself had declared that Buck and Brander should have the refusal. They were to sell only in the event of their determining not to keep the land themselves.
    Wickham.
    In their answer to Copland’s, bill, it is expressly said, that Copland told Buck that he would give more than 2s. per acre, and that Hicks and Campbell and he were the same person.
    Williams.
    No offer of any definite sum was made. He surely did not mean to bind against himself; and no person offered any more. It appears from the correspondence-through Kincaid, that they offered to let Moseley take the land back, if he chose it. But he approved of their conduct in every respect. The very circumstance of their detailing every thing they knew about the transaction shows they intended no fraud. Their answer to Copland’s bill (if evidence at all) must be taken altogether. If so, it shows that no larger sum than 2s. was, ever offered.
    Fven admitting the defendants have acted improperly, ought the contract to be rescinded? The utmost that can be claimed is the difference between 2s. per acre, and' the price which might have been obtained.
    Wickham, in reply.
    As agents for Moseley, it was the duty of Buck and Brander to get the best price they could. But they avoided Copland: endeavoured to-have no communication with him, considered his conduct “ungentlemanly,” because he interposed to prevent their getting the land, and did not tell him that any other person would give 2s. Fraud consists in suppression of truth, as well as affirmation of falsehood. Here, both are found. *Buck perhaps went further in the fraud' than Brander; but although one partner is. not punishable criminally for a fraud committed by another for their joint benefit, he is liable for the civil consequences. Indeed, they both hugged the fraud, and cheerfully participated in its fruits. They told Moseley by their letter that no person-had offered more than 2s.; yet they admit in their answer to Copland’s bill, that he had offered more. He says in his deposition that he “intimated this very plainly” ; they say that “he said he would give more.” They were bereft of common prudence, as well as integrity, in swearing as they did; but they threw it into an answer to be filed in the Court of Chancery in a cause to which Moseley was no party, and of which he might never have heard. He indeed approved of their conduct, and never complained of the fraud, because he never knew it. And it never would have been known, but for such a work as Call’s reports in which the substance of their answer was published.
    In case of fraud the contract is to be rescinded altogether. The Court cannot make a new contract for the parties. They are not to be permitted to reap any profit from their fraud.
    
      
      
        See foot-note to Wellford v. Chancellor, 5 Gratt. 39; monographic note on “Agencies” appendefi to Silliman v. Fredericksburg, etc.. R. R. Co., 27 Gratt. 119.
    
    
      
       See the case reported in 2 Call 218, 230.
    
    
      
       Peake’s Evidence, 54; Grant v. Jackson. Peake’s Rep. 203.
    
    
      
       2 Call, 222.
    
   The following was delivered by

JUDGE) ROANE

as the opinion of this Court.

‘ ‘An appeal having been allowed, by consent, from the decree in this case, as far as it relates to the heirs of Benjamin Moseley deceased; and the cause coming on to be -heard, as well in relation to the said heirs as to the present appellants: the Court is of opinion that the contract, for the purchase of the land in the proceedings mentioned, was made under such circumstances of fraud and concealment, that the same ought to be vacated. The decree of the Court of Chancery is therefore reversed with costs; and this Court proceeding, &c. It is further decreed and ordered, that the said land be re-conveyed to the said heirs of Benjamin Moseley, on the appel-lees’ receiving *back their purchase money with interest; and that an account of the rents and profits of the said land be also taken, if the appellants shall desire it; the said money to be paid on or before a day to be limited by the said Court of Chancery, and the land aforesaid to remain ultimately liable for the payment thereof; and the cause is remanded to the said Court of Chancery to be finally proceeded in pursuant to the foregoing principles.” _  