promise of another to purchase for the benefit of the promisee, at the sale, and accordingly allows the promisor to become the holder of the legal title, any subsequent denial by the latter of his duty in the ownership will be a fraud; he holds the title as trustee for his employer. And if it be agreed that a declaration of trust shall be inserted in a written undertaking of the kind, and this is not done, equity will treat the agreement as if the declaration had been inserted, in the absence of evidence of a waiver or relinquishment of the right to it.2 Nor need a fraudulent intent be shown to have existed when the agreement was made.3 If however the agent's authority be parol, and there is nothing in the employer's case but the bare employment, the case, by reason of the Statute of Frauds, will be different. It is definitely laid down that where a man merely employs another by parol to buy an estate for him, and the agent buys the estate for himself and then denies the trust, there, if no part of the purchase-money was paid by the principal and there was no written agreement, he cannot compel the agent to convey the property to him; the fiduciary relation alone is not enough. But in England a different rule may prevail.5 The proposition was under consideration in a recent case cited. The plaintiff there sought to charge the defendant with a trust on these facts: The defendant had merely agreed to help find a man who would advance money to the plaintiff 1 Cowperthwaite v. First National 11 Allen, 15, 17; and again in Collins Bank, 102 Penn. St. 397; Wolford v. v. Sullivan, 135 Mass. 461. See BartHerrington, 74 Penn. St. 311; Beegle lett v. Pickersgill, 1 Eden, 515; s. c. 1 v. Wentz, 55 Penn. St. 369; Boynton Cox, 15, 4 East, 577, note, 4 Burr. v. Housler, 73 Penn. St. 453. 2255; Davis v. Wetherell, 11 Allen, 19, note; Parsons v. Phelan, 134 Mass. 109. But see Wolford v. Herrington, 2 Wolford v. Herrington, 74 Penn. St. 311; Overton v. Tracy, 14 Serg. & R. 326. 8 Wolford v. Herrington, supra. Sugden, Vendors, 703, 14th ed., quoted and adopted in Kendall v. Mann, to enable him to buy certain land which had once belonged to the plaintiff, but which he had lost through foreclosure of a mortgage upon it, the plaintiff to pay him $200 for his services. Relying upon this undertaking of the defendant, the plaintiff abstained somewhat from efforts in the same direction; the defendant also dissuading him, with secret intent to get the property himself. And he did then buy it on his own behalf. The plaintiff was held to have no case; none on the ground of trust because the agreement fell far within the rule above stated; none on the ground of fraudulent intent, because it was not probable that the plaintiff had been prevented from buying by the defendant's conduct. Nor can an agent use for his own benefit, and against his principal, information obtained in investigating a title for his principal. Indeed it has been finally laid down, after some con flict of authority, that when a party who has a secret in trade employs others under a contract express or implied, or under a duty express or implied, they cannot gain the knowledge of the secret and then use it against their employer; they will be enjoined if they attempt to do so.2 In the Massachusetts case cited Mr. Justice Gray said that it mattered not that, besides being communicated necessarily to agents or servants, the secret was liable to inspection by officers of the government, or that it might be divulged in the course of a judicial investigation; such circumstances could not be alleged by an agent or servant in aid of his intended breach of confidence.3 It is no fraud on the principal for the agent to receive to his own use gratuities from another for incidental benefits derived from services rendered by the agent for his principal, where 1 Reid v. Stanley, 6 Watts & S. 369; Ringo v. Burns, 10 Peters, 279; Rogers v. Lockett, 28 Ark. 290. 2 Morison v. Moat, 21 L. J. Ch. 248, Lord Cranworth; s. c. 9 Hare, 241; quoted and followed in Peabody v. Norfolk, 98 Mass. 452. 3 The last remark was made in allusion to Lord Eldon's refusing an injunction upon such grounds in Newbury v. James, 2 Meriv. 446. neither the principal nor the agent had any claim for the amount so received.1 It matters not that a party for whom another has been acting in promoting a transaction, in which both are to become partners, obtains a good bargain from the agency of the other in the matter. If the party managing the transaction has secretly obtained an undue advantage, he will not be permitted to retain it. This principle was recently enunciated in an English case. Four out of five persons who had agreed to purchase a mine and to sell it to a company for their joint benefit were deceived by the fifth in the course of effecting the purchase. The latter represented that the owners would not sell the property for less than a certain sum, while at the same time he obtained an agreement from the owners that, on perfecting the sale at such sum, he should be allowed a bonus equal to nearly one-quarter of the purchase price. The purchase was effected accordingly, and two out of the original five joined in forming a company for the purchase of the mine, and in fact bought it, at a considerable advance over the price understood to have been paid to the original owners. The nature of that transaction however having been discovered, it was held that the agreement for the bonus was fraudulent and void, not only as against the other four original purchasers, but also as against the company; and this too though it appeared that the mine was cheap at the price paid by the company. It was observed that the company had a right to the best bargain which the two original parties, acting as a committee of management, would have been in a position, dealing fairly, to give them, had they known the facts.2 The rule of law forbidding the abuse of confidence applies as strongly against those who have gratuitously or officiously undertaken the management of another's property as to those who are retained or appointed for that purpose and paid for 1 Etna Ins. Co. v. Church, 21 Ohio St. 492. 2 Beck v. Kantorowicz, 3 Kay & J. 230. it. Hence if a person of his own will become a gratuitous agent of another to negotiate a sale of stock, and then receive compensation from a purchaser as a reward for acting in his behalf and procuring a sale for less than the purchaser would have paid, the agent becomes liable to the vendor for the loss sustained by the breach of confidence.3 The rule that an agent cannot make himself an adverse party to his principal while the agency continues applies only to such agents as are relied upon for counsel and direction, whose employment is a trust as well as a service. It does not apply to those who are merely employed as instruments in the performance of some appointed service. Thus it does not apply to a person who, claiming an equitable interest in property by an assignment from the father of certain infants, brings a suit in the name of the infants, styling himself their next friend. Promoters of a company however fall clearly within the category of fiduciary agents or constructive trustees. They must faithfully state to the company the facts which apply to the property and would influence the company in deciding on acquiring it. § 4. PARTNERS AND JOINT PURCHASERS. Dealings inter sese. The relation of partners and joint purchasers inter sese is fiduciary, but fiduciary with a difference as compared to the cases heretofore considered. The agency which exists between the members is a mutual agency; each is agent for the others, and there is no principal in the ordinary sense, except as the whole body, which however has 1 Rankin v. Porter, 7 Watts, 390; Coggs v. Barnard, 2 Ld. Raym. 900; Doorman v. Jenkins, 2 Ad. & E. 256; Hunsaker v. Sturgis, 29 Cal. 142. 2 Hunsaker v. Sturgis, supra. 8 Deep River Mining Co. v. Fox, 4 Ired. Eq. 61. See ante, p. 295, note 4. 4 Michael v. Michael, 4 Ired. Eq. 349. 5 Emma Mining Co. v. Grant, 17 Ch. D. 122; Erlanger v. New Sombrero Phosphate Co., 3 App. Cas. 1218; In re Hereford Co., 2 Ch. D. 621, C. A. Ib. no legal entity, may be regarded as principal. Nothing then, apart from special arrangement is peculiarly in the keeping of a particular member; that is, nothing is in his keeping and control in the sense in which a principal's interests are in the keeping and control of his agent, or a client's interests in the keeping and control of his attorney, or a cestui que trust's in his trustee's. This assumes the ordinary and typical case of a partnership or joint venture. Partners are presumed to have equal access to and knowledge of the books and business of the firm; and, in the absence of any evidence contrary to this presumption, they stand upon an equal footing in inter-alienations of their respective interests.1 Hence in the case of such a sale it will not be permitted one of the parties to say that the value of his interest was misrepresented by the other. And it has even been held in such a case that the fact that the purchaser bought the vendor's interest through a third person, concealing the real nature of the purchase, was not necessarily a fraud.2 But where a partner intending to purchase the interest of 1 Geddes's Appeal, 80 Penn. St. 442. 2 Ib. "That such a concealment,' it was said, 'was not a fraud per se, as is assumed in this assignment of error, is easily demonstrated. Of what importance was it to the plaintiff who the purchaser was, provided he obtained his price or the value of his interest? It is a very common thing in real estate, and perhaps other transactions, for the purchaser to conceal his name from the vendor, and negotiate through or in the name of another party. The reasons for this are obvious, and such course of dealing has never been held to be fraudulent. It is true there might be a case in which such concealment might be some evidence of fraud. But it would only be so in its relation to other facts, as to which it formed a connecting link in a chain of evidence to establish a put |