#### Lillian Traver Carr, Plaintiff, *v.*The National Bank *&*Loan Co. of Watertown, Defendant.

(Supreme Court, Jefferson Special Term,

April, 1898.)

1. Fraudulent representations —A bank president selling its own worthless securities to a woman who confided in him- as her friend and agent — Liability of the bank — Concealment of its ownership.

Proof that the president and manager of and a large owner in a banking corporation, who- had purchased certain securities at a discount and for ¡the purposes of speculation, tendered his services as a friend and gratuitous agent to a woman, unacquainted with business, in finding her first-class investments-, that she, solely upon Ms advice, purchased the securities held by the. bank upon his representations that they were first-class in every respect and as good as gold, that he concealed the fact of the bank’s ownership and exacted from, her the highest price possible, entitles her, upon further proof I that the securities were of little value, that some were second mortgage bonds and that default was subsequently made In the payment of nearly all, to rescind, and upon offering t» restore, to recover her moneys bf the bank, as it must be deemed tó be bound by the acts of its chief executive officer.

2. Agency — The agent cannot sell his own property to the principal.

Where a person assumes to act as an agent in the purchase of property, he cannot lawfully sell Ms own property to his principal; except with her knowledge and consent.

This action is. brought to recover the sum of $12,000, with interest thereon, alleged to have been paid by the plaintiff to the *369defendant for the purpose of having the same invested in securities to be purchased by the president of the defendant for her, upon the ground that said money was obtained from the plaintiff and permitted by her to be used in the purchase of said securities, by reason of the false and fraudulent statements and representations of the defendant’s agent and because certain material facts relating to the interest of the defendant in said securities were concealed by it from the plaintiff. ...

Elon R. Brown, for plaintiff.

Purcell *&*Carlyle (John Lansing, of counsel), for defendant.

McLennan, J.

At the times mentioned in the complaint the defendant was a banking corporation, organized under the laws of the United States, and having its principal place of business in the city of Watertown, N. Y. Defendant’s president and manager was George H. Sherman, who was also a large owner of its capital stock. In the latter part of the year 1892, the plaintiff deposited in the defendant’s bank about $13,000, for the purpose of having the same invested by Mr. Sherman for her. At that time and for many years prior thereto, Mr. Sherman was regarded by the plaintiff as a trae and disinterested friend of herself and "of her husband, then lately deceased, and sustained to them close and confidential relations. By reason of such supposed friendship and confidential relations he was given full power and authority to invest the money deposited by her, to sign her name to checks, to draw the same from the bank and to deal with the money in such manner as he might see fit for the purpose of investing the same. The plaintiff was not acquainted with business methods, had had no experience in the transaction of business, knew nothing about securities or investments, and so informed Mr. Sherman, and told him that she would, and, as matter of fact, did rely entirely upon Mr. Sherman in securing investments for her. She was led to believe by him that his only interest in the transaction in question was to promote and look after her interest.

He first represented to hjer that he could find good, first-class securities for her, and tendered his services to her solely as a matter of friendship. Later he represented that he had found such securities, and at the time of the transfer of the securities in question he represented that they were first-class securities in every respect; *370that they were as good as gold, and led her to helieve that he had procured them expressly for ¡her, and that he had no personal interest in the transaction.

As matter of fact the securities transferred to the plaintiff, amounting to $12,000 par value, were, at the time of the transfer to her,- the property of the defendant, and had been for some time prior thereto. This fact was concealed from the plaintiff by defendant’s president. The defendant had purchased the securities. for speculative purposes, for at least 5 per cent, less than their face valué, and transferred them, through its president, to the plaintiff at their par value. The expense of the investigation which led the defendant to purchase the securities in- question was paid to it by customers or creditors of the defendant, who were interested, in .disposing of the same. The securities transferred to the plaintiff were not first-class securities; were not as good as gold, and some. of them were not as represented by defendant’s president in other respects. The plaintiff made no inquiry or investigation in regard to" their value, did not even examine them as to itheir form or character, but purchased them relying solely upon the advice, statements and representations of defendant’s president.

Before the commencement of this action, default was made in the. payment of interest upon all or substantially all of the securities purchased by the plaintiff.. She then, through her counsel, made investigation and discovered that the securities were not as represented by defendant’s president; and that they were not purchased for her, but were securities which, at the time of the transfer to her and for some time previous thereto, were the property of the defendant. It was also discovered that said securities were then of little value. Thereupon, and before the commencement of "this action, the plaintiff tendered to the defendant the securities which she had purchased of it and demanded the money from thé defendant which she had paid. This was refused and action was commenced.

Considering the relations which existed between the plaintiff and defendant’s president at the time the sale of the securities, in question was made, it must be held that the representations made by Mr. Sherman.as to the valué and character of the securities were material; that they were relied upon by the plaintiff and induced her to make the purchases in question.

It is further held that the representations so made were not true, and that the plaintiff sustained damage by reason thereof, *371. Mr. Sherman stated to the plaintiff that the securities transferred to her wer.e first-class securities; were as good as gold. Both statements were untrue._

The case of Rothschild v. Mack, 115 N. Y. 1, was an action brought to recover the amount of a note which the plaintiffs indorsed and procured to be discounted, upon the representation made at the time that it (the note) was as good as the Bank of England and that the plaintiffs would run no nsk in indorsing the same. At page *7*the court, by Peckham," J., says: “ If he (the party making the representations) did not know its condition (the condition of the makers of the note), he yet assumed to have actual knowledge of the truth of his statement that the note was 'as good as the Bank of England: * * * He certainly meant to convey the impression of actual knowledge of the truth of the representa■tions he made as to the value of the note, and he either knew such representations were false or else he was conscious that he had no actual knowledge while assuming to have it and intending to convey such impression. If damage ensue, this makes an actual fraudulent representation.”

As to some of the Securities, Mr. Sherman represented to the plaintiff that they were first-mortgage bonds. As matter of fact they were second-mortgage bonds, and so appeared upon their face. The plaintiff did not examine them; they were retained by Mr. Sherman in the defendant’s bank, and she relied implicitly upon the statements of Mr. Sherman. It is held that such a representation was sufficient ground for rescinding the sale as to those securities. In the transactions in question, Mr. Sherman represented the defendant, and it was bound by his acts in the sale of the securities, owned by it, to the plaintiff.

In the case of Fairchild v. McMahon, 139 N. Y. 290, the headnote is as follows: “All persons who. act for or in the name of the owner in bringing about the transaction must be deemed his agents where he accepts the fruits of their efforts, and all the methods employed by them are imputable to him; he may not, even though innocent, receive and recover upon a security given on the sale, and at the same time disclaim responsibility for the fraud by means of which the purchaser was induced to deliver it.”

In this case the money of the plaintiff was permitted by her to be paid over to the defendant by reason of the false statements of Mr. Sherman, its president and manager. It has retained such moneys, and its obligations to the plaintiff .are precisely the same *372as'Mr, Sherman’s would 'have been had he been the owner of the securities.

It is further held that the plaintiff is entitled to rescind the contract for the sale of -the securities in question, for the reason that Mr. Sherman,;while assuming to act as the plaintiff’s agent to buy securities for her, procured the securities in question of the defendant, of which he was president and manager and owner of a large amount of iti capital stock. His obligation, at the tiine^.' to. the plaintiff was to purchase securities for her as cheaply as possible. It was ,for his interest to .sell the securities, which he did, at the highest possible price. It was his duty, as president of and as rep' resenting the defendant, to do the same.

In the case of Conkey v. Bond, 36 N. Y. 427, the head-note is-as follows: “ An agent under a general authority to purchase, cannot buy from himself without the knowledge or assent of his principal. Such a transaction is a breach of duty, and the contract is. subject to rescission, irrespective of any question of intentional fraud or actual injury.”

And, at page 429, the court say, Porter, J.: “ There is no view of the facts in which the transaction can be upheld. He (the defendant) ¡stood in a relation to his principal which disabled him from concluding a contract with himself, without the knowledge or assent of the party he assumed to represent. He undertook tOi act at once as seller and as purchaser. He bought as agent,' and sold as owner. The *ex parte*bargain, thus concluded, proved advantageous to him and very unfortunate for his principál. It was the right of -the latter to rescind it, on discovery of the breach of confidence. It is not material to inquire whether the defendant had any actual fraudulent purpose. The making of a purchase from himself, without authority from the plaintiff, was a constructive fraud, in view of the fiduciary relation which existed between the parties.” . - >),

The case of Mayo v. Knowlton, 134 N. Y. 250, was a case in which the defendant agreed to purchase for the plaintiff 4,000 shares of the stock, of the Silver King Mining Company. In pursuance of that agreement the defendant transferred to the plaintiff the stock of. the company belonging to himself, and received and retained to his own use the money paid therefor. It was! held that, upon the discovery of such fact, the plaintiff had a right to rescind the contract and recover back the purchase price paid.

A large number of other cases might be cited holding expressly that where a person assumes to act as agent for another in the pur*373chase of property, he cannot sell to his principal his own property without the knowledge and consent of his principal, and that, if he does so, upon the discovery of the fact, irrespective of any other circumstance or consideration, the purchaser is .entitled to rescind the contract. In the case' at bar, as before said, Mr. Sherman was employed by the plaintiff to purchase securities for her. Thereupon he became charged with the duty of procuring them upon the best terms possible. She had a right to "assume that he had no interest antagonistic to hers that, by any possibility, could influence him in the discharge of his duty to her. At the same time he was representing the defendant as its chief executive officer, and was charged with the duty of selling its securities at the highest price possible. His personal interest was also to obtain for the securities of the defendant the best price he could. Without disclosing such interest of .the defendant or that of himself, he sold the defendant’s securities to the plaintiff. The defendant received and has retained the proceeds of such sale. As before said,, it is held that, upon the discovery of such facts, the plaintiff was entitled to rescind the contract, and recover from the defendant the moneys which she had paid in pursuance thereof.

It follows that the plaintiff is entitled to judgment against the defendant for the relief demanded in the complaint, with costs. ■

Ordered accordingly.