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 190

Agency.

Sect.

2.

Rights of Principal

against Agent.

that contemplated by the principal at the time of making the contract of agency (q) And this rule may apply even though at the time of the transaction itself the agency has ceased (?-). The rule applies in spite of the fact that the agent has done his best under the circumstances (s) or incurred a possibility of loss (t), or that the principal has in fact received the benefit he himself contemplated from the transaction (a) All such profits and the value of such benefitsmust be paid over to the principal (b). .

.

Agent

to pur-

chase.

Bribe.

Where an agent who

is employed to buy property on his behalf sells his own to the principal, and thereby makes a profit, the principal, in lieu of rescinding the sale, may (c), and, if rescission be no longer possible, must {d), affirm it. He may then recover from the agent the full amount of the profit received by the latter, together with interest (e). Where the agent is employed to buy a particular property (/) in which he in fact has an interest before accepting the agency, and sells it to his principal during the agency without disclosing his interest, the principal may affirm or rescind the contract, but if he affirms it, he cannot also claim the profits (g) in the absence of any underhand dealing (fi).

principal's

406. Where the

secret profit is received

from a third person with

whom the agent is dealing on his principal's behalf,

it is

called a secret

commission or bribe. The receipt of a bribe, whether in money (i) or otherwise (k), is a breach of duty, and it is immaterial whether or not the agent is influenced by such bribe in a way prejudicial to his principal's interest Usual con: missions.

(Z).

Where, however, the principal leaves the agent to look to the third party for his remuneration {m), or knows that he will receive Even though the agency [q) See cases cited in notes (n), (o), ( jo), p. 189, ante. be gratuitous [Turnhull v. Garden (1869), 20 L. T. 218). The same principle applies to sub-agents where a fiduciary relation is established {Powell v. Evan Jones & Co., [1905] 1 B. 11).

K

& F. 657. (1862), 2 Johns. & H. 609. (t) Willmms V. Stevens (1866), L. E. 1 P. C. 352. (a) De Bussche v. Alt (1878), 8 Ch. D. 286, (6) Thompson v. Meade (1891), 7 T. L. E. 698 ; and cases in preceding notes, (c) The onus of maintaining that the sale has been affirmed lies on the agent {Cavendish- Bentinck v. Fenn (1887), 12 App. Cas. 652, jper Lord Watson, at p. Painter (1842), 8 CI.

(r)

Carter

(s)

Shallcross v.

v.

Oldham

As in Re Leeds and Hanley Theatres of Varieties, Ltd., [1902] 2 Ch. 809 and Re Cape Breton Co. (1884), 26 Ch. D. 221. {e) Bentley v. Craven (1853), 18 Beav. 75; Tyrrell v. Banh of London (1862), 10 H. L. Cas. 26 Benson v. Heathorn (1842), 1 Y. & C. Ch. 326 Massey v. Davies {d)



see





(1794), 2 Yes. 317. (/) Qucere whether the same rule applies where no particular property is indicated. See Re Cape Breton Co., supra. Cavendish(g) Re Cape Breton Co., supra (affirmed on another ground sub nom. Bentinck v. Fenn, supra), approved in Burland v. Farle, [1902] A. C. 83. {h) Kimher v. Barber (1872), 8 Ch. App. 56.

Hay's Case (1875), 10 Ch. App. 593 Boston Deep Sea Fishing and Lee Go. 39 Ch. D. 339. (k) Nantyglo and Blaina Ironworks Co. v. Grave (1878), 12 Ch. D. 738; McKay's Case (1875), 2 Ch. D. 1. {I) Harrington v. Victoria Graving Pock Co. (1878), 3 Q. B. D. 549. (m) Great Western Lnsurance Co. v. Cunlife (1874), 9 Ch. App. 525. {i)

V. Ansell (1888),