Robeson & Weaver v. Ramsey. The courts always seek to gather the intention of the parties, and many cases are influenced by some indication of that intention other than the bare use of the term under notice. It seems to us that where a contract involves an even grosser consideration of mere value, as where the compensation of an agent for sale depends on his procuring a satisfactory value for something that has a market value, the agent should be declared to have earned his compensation when he óbtains a value that should satisfy a reasonable man. If one has a commodity which he wishes to sell, his chief concern is as to the price it brings. If the commodity has a market value, that value can be approximately fixed, and a price obtained substantially in excess of the market price should be held satisfactory. To express dissatisfaction with such a price is capricious. This view was taken by the supreme court of Missouri in a case where the agent was to be paid a commission for obtaining a satisfactory lease. It was held that the landlord could not arbitrarily refuse to accept the lease negotiated. Mullally v. Greenwood, 127 Mo., 138, 29 S. W., 1001, 48 Am. St. Rep., 613. We are of opinion, therefore, that this farm brought a price in excess of its value with which the defendants ought, as reasonable men, to have been satisfied, and that the complainants earned their stipulated commission. It is next urged that complainants should not be allowed to recover because their employee, the auctioneer, was permitted or instructed to bid for them at the sale. The general rule is that an auctioneer will not be allowed to buy or bid on property offered by him for sale. 6 C. J., 834; 2 R. C. L., 1127. This is but an application of the rule Robeson & Weaver v. Ramsey. that an agent will not be permitted to put himself in a position where his interests are inimical to those of his principal. This doctrine was stated years ago by Judge CARUTHERS in language that has been quoted in text-books and other decisions so frequently that its origin has been lost sight of, even by the profession of this State. We, therefore reproduce the language of the learned judge as follows: "It is one of the canons of a court of equity, that one who undertakes to act for others, cannot in the same matter act for himself. Where confidence is reposed, duties and obligations arise which equity will enforce. A trustee cannot throw off the trust at pleasure, to the injury of the cestui que trust. He will not be allowed to mix up his own. interests and affairs with those of the beneficiary. This doctrine has its foundation not so much in the commission of actual fraud, but in that profound knowledge of the human heart, which dictated that hallowed petition, 'Lead us not into temptation, but deliver us from evil,' and that caused the announcement of the infallible truth, that 'a man cannot serve two masters.' The right to sell, and to buy, cannot exist in the same person, because of the antagonistic interest in the two positions. Hence the fairness or unfairness of the transaction, and the comparison of price and value, or the existence or absence of actual fraud, are not permitted to enter into the consideration of the court. It is enough that the relation of trustee, and cestui que trust, existed. This appearing, the investigation is at an end, and the doctrine applies with all its force. It is certainly too late in the day to require the citation of authorities to establish this doctrine. But they may be found collected (609) in the cases of Keech v. Sandford, 47 to 58, 146 Tenn.-3 Robeson & Weaver v. Ramsey. and Fox and Pitt v. Mackreth, 105 to 146, 1 White & Tudor's Leading Cases, In Equity, as to the two aspects in which we have discussed this case." Tisdale v. Tisdale, 34 Tenn. (2 Sneed.), 596, 608, 64 Am. Dec., 775. As heretofore stated, this farm was sold in parcels. There was one tract of thirty acres; the same being an island, in Cocke county. There was little bidding on the island when it was offered, and, acting under instructions from one of the complainants, the auctioneer bid up to $130 an acre on this land for said complainants. The land was not knocked off on this bid, however. The auctioneer announced that the land was worth more than $130 an acree, and the sale was adjourned for lunch. After lunch the island was blocked with other land in Cocke county, and the whole sold to a third party on an unquestioned bid. The complainant did not, therefore, get the island. One of them said that he thought the island was worth $150 an acre, and he was willing to take it at $130. It is evident from the testimony of complainants, however, that the bid was not made on this tract of land with any real desire of acquiring it. The bidding was done to boost the price of the tract and to boost the aggregate price of the whole farm. Complainants got no commission unless they effected a satisfactory sale. Any possible profit they might have made on the purchase of the thirty acres would have been a trifle compared with their commission for a satisfactory sale of the entire farm. So we believe that in bidding on this island complainants were merely trying to make the farm bring a better price, and were not taking a position where there was any conflict between their interests and the interests of defendants. The reason of the rule relied on by defendants accordingly fails in this case, and the Robeson & Weaver v. Ramsey. rule should not be applied to charge complainants with fraud in law. There can be no charge of fraud in fact, since they were acting in good faith and in the defendants' behoof. It is finally said that complainants cannot recover because they did not bind the purchasers at this auction by memoranda sufficient to charge them under the statute of frauds. The weight of the proof on this question is to the contrary. Moreover this is not a case where the purchaser has made default, and Gilchrist v. Martin & Clarke, 86 Tenn., 583, 8 S. W., 572, and such cases are not in point. Until the purchaser procured by the agent refuses to comply, the owner has no excuse for saying that the agent has been remiss in not procuring a sufficient memorandum to charge such purchaser. Some other questions are made which we have considered, but do not think they require discussion. We find no error in the decree of the chancellor, and it will be affirmed. Bowlen v. Baker. MRS. M. A. BOWLEN v. EUGENIA WHITE BAKER.* (Knoxville. September Term, 1922.) 1. WITNESSES. Where plaintiff testified as to transaction with deceased on cross-examination over defendant's exception, defendant's cross-examination did not render a re-examination competent. In action against executrix for services rendered testator, based on testator's promise to further compensate complainant, for her services, in his will, in which complainant testified on direct examination over defendant's exception as to such agreement, the mere fact that the defendant cross-examined her as to the agreement did not render testimony as to testator's promise on re-examination competent, where otherwise incompetent under Thompson'sShannon's Code, section 5598, making testimony as to transaction with deceased incompetent. (Post, p. 39.) 2. WITNESSES. Defendant did not waive exceptions to admission of testimony on direct examination by cross-examination. Defendant did not waive exceptions to admission of incompetent testimony of plaintiff on direct examination by cross-examining plaintiff as to the matter. (Post, p. 39.) Cases cited and approved: McCormick v. State, 135 Tenn., 218; Scott v. Bank, 123 Tenn., 287; Goodlett v. Kelly, 74 Ala., 213; Bentley v. Bentley, 72 Neb., 803; Calwell v. Prindle, 11 W. Va., 307. Code cited and construed: Sec. 5598 (T.-S.). FROM KNOX. Appeal from the Chancery Court of Knox County.-HON. CHAS. HAYS BROWN, Chancellor. *On the question of waiver of objection to testimony by crossexamination see note in 33 L R. A. (N. S.) 106. |