(DE
AN
*March 9,10.
FENDANT).......................
A
*March
AND
AMOS C. FLEMING (PLAINTIFF)
. RESPONDENT. APPEAL FROM THE SUPREME OF BRITISH COLUMBIA.
DUFF J.-I think this appeal should be dismissed.
In the transaction relating to lot 739 the defendant appears in fact to have made the purchase after he had accepted employment as the plaintiff's agent for the purchase of that property.
Under his arrangenient with the plaintiff the defendant was unquestionably entitled to bargain with the vendors for and to receive from them a commission on any sale effected through his agency; and, had he in this case made such a bargain, it may be assumed that the price demanded by the vendors would have been correspondingly increased. Instead, however, of taking this straightforward course, the defendant-as the learned judge appears with quite sufficient warrant from the evidence to have found-resorted to the subterfuge of a clandestine purchase in the name of another in order to procure a profit out of the plaintiff; a profit ostensibly paid to the sham purchaser, but really passing into the defendant's own pocket.
By this tortuous course, the defendant made himself as the plaintiff's agent accountable for the whole of the excess of the purchase money paid by the plaintiff over that actually received by the vendors; and clearly, I think, without the right to make any deduction as for commission-for under the terms of his agency he was to look for his commission to the vendor.
With respect to the other transaction, the evidence, I think, supports the finding that the relation of principal and agent had already been established between the plaintiff and the defendant when the defendant procured from Alvensleben the option to purchase; and that it was in fact procured by him in his ciaracter of agent for the plaintiff. The plaintiff was, therefore, entitled to the benefit of that option, and here again the defendant was, under the arrangement referred to, bound to look to the vendor for his commission.
If in the result the defendant is not entitled out of the moneys in his hands as trustee for the plaintiff to retain any sum as for commission on the transactions he negotiated, that is only the just consequence of his attempt to traffic for his own profit upon a fiduciary relation.
Appeal dismissed with costs.