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Obligations of Agents to Principals
Agents stand in fiduciary relation to their principals. As such, agents have fiduciary obligations to the principal. The Restatement outlines a s series of fiduciary obligations that an agent has with respect to the principal. The most important of these are the duty of care and the duty of loyalty. The fiduciary obligations of agents with respect to principals can be understood as an analogue to fiduciary obligations of corporate directors in the the corporate law context.
  • 1 Agent's Duty of Care

    • 1.1 Carrier v. McLlarky

      What does an agent's duty of care require?

      1
      141 N.H. 738 (1997)
      2
      JANET CARRIER
      v.
      BRUCE M. MCLLARKY D/B/A ASSURED PLUMBING & HEATING
      3
      No. 95-703
      4

      Supreme Court of New Hampshire.

      5
      April 16, 1997
      6

      Janet Carrier, pro se, filed no brief.

      7

      [739] Bruce M. McLlarky, by brief, pro se.

      8
      JOHNSON, J
      9

      The defendant, Bruce M. McLlarky d/b/a Assured Plumbing & Heating, appeals an adverse judgment by the Derry District Court (Warhall, J.) in a small claims matter. We reverse.

      10

      The defendant installed a replacement hot water heater in the home of the plaintiff, Janet Carrier, in September 1994. The existing water heater had been installed by a different plumber approximately four years prior to its failure. When the defendant installed the new water heater, he told the plaintiff that he believed the old unit was under warranty, and that he would try to obtain a credit against the cost of the new water heater from the manufacturer. The defendant subsequently returned the defective unit to a supplier. The defendant has not given the plaintiff the desired credit and claims that he has failed to do so because he has not received payment from the manufacturer. The plaintiff sued the defendant in small claims court for the replacement value of the water heater and assorted costs. The district court rendered judgment in favor of the plaintiff, and this appeal followed.

      11

      The district court held: "The defendant in accepting the duty of returning the unit for the benefit of his [principal], the plaintiff[,] either obtained a credit or failed to pursue a credit to the detriment of the plaintiff." We interpret the court's holding as imposing liability under a theory of breach of duty on the part of an agent. See Nowell v. Union Mut. Fire Ins. Co., 119 N.H. 855, 857, 409 A.2d 784, 786 (1979) (breach of agent's duty to principal can subject him to liability for damages).

      12

      [1, 2] We find no error in the district court's determination that the parties had entered into an agency agreement whereby "the defendant would on behalf of the plaintiff return the old water heater for credit, which the plaintiff would [recoup]," and that "[t]he defendant accepted the authority to act for the plaintiff and took the old water heater to return it to the manufacturer for credit." Whether an agency agreement has been created is a question of fact. See 3 AM. JUR. 2D Agency § 21 (1986). An agency relationship is created when a principal gives authority to another to act on his or her behalf, Fleet Bank-N.H. v. Chain Constr. Corp., 138 N.H. 136, 139, 635 A.2d 1348, 1350 (1993), and the agent consents to do so. See 93 Clearing House, Inc. v. Khoury, 120 N.H. 346, 348-49, 415 A.2d 671, 673 (1980). The granting of authority and consent to act need not be written, but "may be implied from the parties' conduct or other evidence of intent." Id. at 349, 415 A.2d at 673. This court will not overturn a factual finding of the trial court unless it is unsupported by the evidence. See In re Estate of Crowley, 129 N.H. [740] 557, 559, 529 A.2d 960, 961 (1987). Here, both the testimony and documentary evidence submitted by the parties support a finding that an agency agreement had been formed.

      13

      [3] The question thus becomes whether there is evidence in the record to support a finding of breach. Agents have a duty to conduct the affairs of the principal with a certain level of diligence, skill, and competence. "A determination that an agent was not sufficiently diligent is a question of fact that will not be disturbed unless it can be said that no rational trier of fact could come to the conclusion that the trial court has reached." Nowell, 119 N.H. at 857-58, 409 A.2d at 786. We find that in this case the trial court's findings were unreasonable and unsupported by the record. Cf. id. at 858, 409 A.2d at 786.

      14

      [4] "Under ordinary circumstances, the promise to act as an agent is interpreted as being a promise only to make reasonable efforts to accomplish the directed result." RESTATEMENT (SEOND) OF AGENCY § 377, comment b at 174 (1957). The court's own findings show that the defendant did make a reasonable attempt to obtain a refund for the plaintiff. Specifically, the court found that after agreeing to act on behalf of the plaintiff, "[t]he defendant then gave the old water [heater] to [a supplier] to return it to the manufacturer." The court's subsequent statement that "[t]he plaintiffs contacted the defendant numerous times regarding the credit and were told they would receive their money as soon as he received the credit," is insufficient to support a finding that the defendant breached his duty of diligence. This is especially true given that "[t]he duties of an agent toward his principal are always to be determined by the scope of the authority conferred." 3 AM. JUR. 2D Agency § 209; see RESTATEMENT (SECOND) OF AGENCY § 376. The record shows only that the defendant was charged with returning the defective water heater for a possible credit; he did not guarantee that a credit would be obtained.

      15

      In addition, the degree of skill required by an agent in pursuit of the principal's objective is limited to the level of competence which is common among those engaged in like businesses or pursuits. See RESTATEMENT (SECOND) OF AGENCY § 379, comment c at 179; 3 Am. Jur. 2d Agency § 215; cf. Nowell, 119 N.H. at 857, 409 A.2d at 786. There is no indication from the evidence on the record that more was required of the defendant in his agent capacity beyond executing the actual return and seeking the credit. The invoices and work orders provided to the court by the plaintiff do not indicate that the defendant guaranteed a refund. Rather, he merely promised to attempt to obtain a credit from the manufacturer. The invoice [741] drawn up by the defendant and submitted as evidence by the plaintiff stated only that a refund under a warranty may be possible. Further, the record contains a letter from a supplier stating that the defendant "acted in a normal manner as any dealer would under these circumstances," and "was right to withhold credit ... until the factory actually covered the unit."

      16

      Furthermore, an agent cannot be held liable to the principal simply "because he failed to procure for him something to which the latter is not entitled." 3 AM. JUR. 2D Agency § 215. The defendant correctly argues that any finding by the court that there was a valid warranty in place is unsupported by the record. The evidence submitted regarding the existence of a warranty included only two undated sales brochures claiming that a similar unit would be covered by a five to ten-year warranty and a letter dated approximately six months after the unit was replaced noting that a warranty currently offered to customers was valid for five to twelve years. Notably, the plaintiff did not produce a warranty for her actual unit. No evidence in the record established that the actual heater returned by the plaintiff was in fact covered by a warranty with terms identical to those described in the sales brochures or letter. Moreover, the defendant's supplier stated in a letter that the unit in question was not covered under a valid warranty.

      17

      There is also no support in the record for the holding that the defendant failed to turn over a refund actually received from the manufacturer. As noted above, the record contains a letter from a supplier stating that "[t]echnically, the unit was out of warranty." While the court did find the defendant to be less credible than the plaintiff, there is simply no evidence on the record that the defendant ever received the credit at all. Hence, there is no evidence to support a finding that the defendant breached his duty to remit funds actually received on behalf of the plaintiff. Cf. RESTATEMENT (SECOND) OF AGENCY § 427 (agent who has received money on behalf of principal has duty to deliver it to principal on demand).

      18

      Consequently, because the district court's ruling was unsupported by the evidence, we reverse.

      19

      Reversed.

      20

      All concurred.

  • 2 Agent's Duty of Loyalty

    • 2.1 Loyalty of Agents

      The following facts are taken from Reading v. Attorney General [1951] A.C. 507 (H.L)

      In 1944 and 1945 certain sums, all in Egyptian currency, amounting in all to £E 18,842, equivalent to £19,325, and held by or on behalf of the Suppliant, were seized and taken into possession on behalf of His Majesty.

      By Petition of Right presented on the 1st November, 1946, the Suppliant sought to recover these sums or their sterling equivalent (allowance being made for sums released to him), as money had and received by His Majesty to his use.

      The Respondent admitted that these sums had been seized and taken into possession on behalf of His Majesty but alleged that they represented part of the proceeds of bribery and that the Suppliant was accountable therefor to His Majesty and received and held them in trust for His Majesty. Alternatively he claimed that the Respondent was entitled to set them off against the Suppliant's Claim.

      The facts proved or agreed in the Action are not in dispute and may succinctly be stated substantially in the form adopted by the Appellant in his case and are as follows : -

      (A) In 1943 and 1944 the Appellant was a Sergeant in the Royal
      Army Medical Corps and receiving pay at the rate appropriate to his
      Rank. He was employed as a Sergeant in charge of medical stores at
      No. 63 General Hospital, Cairo.

      (B) On the 14th March, 1944, he dictated and signed a statement to
      Lieutenant Brooks of the Special Investigation Branch, Middle East,
      that he had received in all some £20,000 from a man named Manole
      in the following circumstances:

      Some time about the beginning of 1943, when having coffee at
      Alexandria whilst on leave, he was asked by a man, who apparently
      knew him but whom he did not know, whether he would assist by
      selling cases of whisky and brandy to agents in Cairo for which he
      would get a few pounds. The Appellant expressed his willingness and
      was told that someone would get into contact with him outside the
      hospital gates at Helmeih and tell him what he had to do. About a
      month later Manole met him there, told him a lorry was coming at
      a specified time to a place which was pointed out to him. When
      it arrived he was to board it and take it to another spot which again
      he was shown. At the specified time and place a lorry duly arrived,
      the Appellant then boarded it and conducted it through Cairo to the
      appointed spot, where the contents were transferred to another lorry
      but he was unable to see of what they consisted. He then went home,
      but by arrangement met Manole later on the same day at a restaurant
      in Cairo and received from him an envelope which on examination
      was found to contain £2,000. This process was repeated on a number
      of occasions on which, as in the first, a lorry arrived with cases the
      contents of which were undisclosed, and after each journey he was
      given sums varying from £1,000 to £4,000.

      (C) On the 20th March, 1944, his statement was shown to the Suppliant
      by Sergeant-Major Jones of the Special Investigation Branch, and the
      Suppliant acknowledged that it was his statement and that it was true.
      He also told Sergeant-Major Jones that he had been dressed on each
      occasion in uniform, and on a later occasion showed Corporal Read of
      the Special Investigation Branch a number of different places in Cairo
      as points at which he had met or left the lorries which he had accom-
      panied from time to time.

      The Appellant's Case also alleges that at all material times it was obligatory for all service personnel in Cairo to wear uniform, except when engaged in
      sport or other specially excepted activity.

      In these circumstances [Judge] Denning held that the Crown was entitled to the money in question. 

    • 2.2 Gelfand v. Horizon Corp.

      1
      675 F.2d 1108 (1982)
      2
      Bernard GELFAND, Plaintiff-Appellee,
      v.
      HORIZON CORPORATION, a Delaware corporation, Defendant-Appellant.
      3
      No. 80-1878.
      4

      United States Court of Appeals, Tenth Circuit.

      5
      April 12, 1982.
      6

      [1109] Ronald F. Horn, Keleher & McLeod, P. A., Albuquerque, N. M. (Robert H. Clark and Russell Moore, Keleher & McLeod, P. A., Albuquerque, N. M., with him on the brief), for plaintiff-appellee.

      7

      Turner W. Branch, Branch, Perkal & Associates, P. A., Albuquerque, N. M., for defendant-appellant.

      8

      Before SETH, Chief Judge, DOYLE, Circuit Judge, and ANDERSON,[1] District Judge.

      9
      WILLIAM E. DOYLE, Circuit Judge.
      10

      Gelfand sued Horizon Corporation, a real estate concern, which was engaged in the owning and marketing of real estate around the country. Gelfand began working for Horizon in 1966. He served first as a real estate salesman and later as a sales manager. In recent times he was transferred to New Mexico and became the district manager in charge of Paradise Hills and Rio Communities which were located near Albuquerque. He had been paid a salary, but in 1977 it was decided by Horizon to pay him a lower salary, plus commissions and overrides based on real estate sales in his district. The percentages paid to the district manager were called overrides and were established by an inter-office memorandum in 1976.

      11

      Gelfand was terminated in January, 1979. Horizon's management apparently felt that Gelfand's success was benefiting him more than the company. Soon after that Gelfand claimed Horizon owed him commissions and overrides on some completed transactions. These Horizon refused to pay. Eventually, however, Gelfand filed suit in the Federal District Court in New Mexico, alleging that he was owed parts of some twelve different sales. Trial was to the court and it was concluded that Gelfand was entitled to commissions of eleven of the twelve sales, and judgment was entered in favor of Gelfand in the sum of $140,322.88.

      12

      On this appeal Horizon raises two points. First, that Gelfand was guilty of a breach of fiduciary duties with respect to one of the sales. There does not seem to be much controversy on this; it is the amount of the offset against Gelfand's claim which is in dispute. Horizon maintains that as a result of the breach of the fiduciary relationship, Horizon was entitled to an offset not only for profits accruing directly to the agent, [1110] but also for profits which accrued to third parties allied with the agent. The trial court gave damages based upon only those profits which had accrued directly to the agent.

      13

      The other issue presented pertains to a different transaction in which Gelfand claims a commission. Gelfand, as manager in Albuquerque, was not the procuring cause of the sale of the Paradise View Apartments. This was a sale outside the course of usual business, between Horizon management and the purchaser. On this account Horizon contends that Gelfand is not entitled to any commission.

      14

      The above described issues are the matters to be determined on this appeal.

      15
      A. The Barranca Estates
      16

      This is the property which Gelfand sold to a corporation in which his wife had a one-third interest. Horizon was not apprised of the details of this transaction. The purchaser corporation was apparently formed for this particular conveyance; it was organized almost contemporaneously with the sale.

      17

      Horizon maintains that due to the breach of the fiduciary relationship, Gelfand was not entitled to a commission, but that Horizon was entitled to set off against Gelfand's other claims all of the profits that were made by the dummy corporation on the Barranca Estates transaction. The trial court, after hearing all the evidence, concluded that Horizon was entitled to an offset, but only as to the one-third share of the profits from the sale. On this appeal, Horizon contends that three-thirds should have been the award.

      18

      The Barranca Estates tract had been for sale for some time (one or two years) prior to Gelfand's arrival in New Mexico. The home office of Horizon in Tucson had set the sales price at $165,000. On November 10, 1977, Gelfand, working as an agent of Horizon, sold an option to buy the tract to B & C Enterprises, a New Mexico corporation, which is mentioned above, and in which Gelfand's wife and son were principals. B & C Enterprises had been incorporated October 27, 1977. Gelfand's wife had advanced the $2,500 price of the option herself. Within the ensuing month, B & C sold the option to Professional Homes, and received a $57,500 profit. Professional Homes paid B & C $60,000 for the option, and then exercised it, and paid Horizon $165,000 for the property. The profit was split three ways; $20,000 went to Mrs. Gelfand, and the balance was divided between Stewart Braums and David Simms, who were the other partners in B & C. B & C apparently went out of business immediately after this transaction.

      19

      The law regarding fiduciary relationships in New Mexico is generally similar to the laws throughout the United States. An agent occupies a relationship in which trust and confidence is the standard. When the agent places his own interests above those of the principal there is a breach of fiduciary duty to the principal. See Rice v. First National Bank in Albuquerque, 50 N.M. 99, 171 P.2d 318, 320 (1946). The fiduciary is duty bound to make a full, fair and prompt disclosure to his employer of all facts that threaten to affect the employer's interests or to influence the employee's actions in relation to the subject matter of the employment. Iriart v. Johnson, 75 N.M. 745, 411 P.2d 226, 227-28 (1965); Mitchell v. Allison, 54 N.M. 56, 213 P.2d 231, 233-34 (1949); McBride v. Campredon, 24 N.M. 323, 171 P. 140, 141 (1918); Annotation, Liability of Real Estate Broker or Agent to Principal for Concealing or Failing to Disclose Offer, 7 A.L.R.3d 693, 695-96 (1966).

      20

      In the present case, the facts giving rise to the breach of the fiduciary relationship are undisputed. That Gelfand failed to disclose the relevant facts to Horizon at the time of the transaction cannot be questioned. Also, it is certain that the company would have objected to the sale to B & C Enterprises which had been formed the previous month. The violation of the fiduciary relationship was, indeed, blatant and the court was entirely correct in concluding that there was a breach of fiduciary duty owed by Gelfand to Horizon.

      21

      [1111] What should be the remedy for breach of fiduciary duty? The trial court refused to give Gelfand a commission on the sale. This was plainly correct. See Canon v. Chapman, 161 F.Supp. 104, 111 (D.Okl.1958), holding that a broker is not entitled to compensation where he acts adversely to his principal's interest; Craig v. Parsons, 22 N.M. 293, 161 P. 1117, 1119 (1916). In this latter case an agent's fraudulent conduct prevented him from receiving or retaining any benefit whatever from the transaction. Cf. Iriart v. Johnson, supra, 411 P.2d at 230, holding that a commission is a profit which the principal is entitled to recover. See also Douthwaite, Profits and Their Recovery, 15 Villanova L.Rev. 346, 373-374 (1970). Where an agent seeks to recover compensation growing out of the same transaction in which he was guilty of being disloyal to his principal, the court is justified in denying the compensation, and the equitable principle applicable to the fiduciary that he is not to profit from his own wrong comes into play.

      22

      We now turn to the issue whether the wife can be forced to return the $20,000 profit made in the transaction. We conclude that this is all part of the breach of fiduciary relationship, and that Gelfand was using his wife for the indirect purpose of gaining a profit which could not be given to him directly. Surely the principal is entitled to recover that sum of money. Iriart v. Johnson, supra, 411 P.2d at 229 (fiduciary wrongfully used the principal's property to make a profit and was held accountable for the profit as constructive trustee); McBride v. Campredon, supra, 171 P. at 141-42 (same); Bogert, Trusts and Trustees, Sec. 543, 543(A), 543(T), at 218, 225-26, 231-32 (rev. 2d ed. 1978) (profit made by fiduciary's wife is attributable to fiduciary and may be taken from him).

      23

      But the court's refusal to hold Gelfand liable for the profits made by the third parties is a more difficult problem.

      24

      It would appear from the cases that a fiduciary who has, by violating his obligation of loyalty, made it possible for others to make profits, can himself be held accountable for that profit regardless of whether he has realized it. See Douthwaite, Profits and Their Recovery, supra, at 370; Bogert, Trusts and Trustees, Sec. 543(V) at 393 (rev. 2d ed. 1978). See also Mosser v. Darrow, 341 U.S. 267, 271-73, 71 S.Ct. 680, 682-83, 95 L.Ed. 927 (1951). There a trustee was surcharged for profits made by employees who traded in securities of trust subsidiaries. The theory is that the trustee is not to be free to authorize others to do what he is forbidden. There are a good many other cases which give support to this proposition. See In Re Johnson, 518 F.2d 246 (10th Cir.); Morrissey v. Curran, 650 F.2d 1267, 1281-83 (2nd Cir.); Securities and Exchange Commission v. Texas Gulf Sulphur Co., 446 F.2d 1301, 1308 (2d Cir. 1971); In Re Combined Metals Reduction Co., 557 F.2d 179, 196-97 (9th Cir. 1977); Craig v. Parsons, 22 N.M. 293, 161 P. 1117, 1119 (1916); Coleman v. Moody, 52 Tenn.App. 138, 372 S.W.2d 306 (1963); In re Hogan's Will, 37 Misc.2d 806, 237 N.Y.S.2d 361 (Sur.Ct.1962). The liability of the fiduciary and of the profiting third party in such cases is said to be joint and several. Douthwaite, Profits and Their Recovery, supra, at 371. See also Canadian Ingersoll-Rand Co. v. D. Loveman & Sons, Inc., 227 F.Supp. 829, 832 (N.D.Ohio 1964); Commodity Credit Corp. v. Transit Grain Co., 157 F.Supp. 527, 540 (S.D.Texas 1957); Craig v. Parsons, supra, 161 P. at 1120. The cases hold that the purpose for restoring profits is to discourage potential conflicts of interest and duty; the complaining principal or employer need not prove that any loss was caused by fiduciary's misconduct. Douthwaite, Profits and Their Recovery, supra, at 335; Dobbs Handbook on the Law of Remedies, 683-84 (1973). This differs from the damages remedy, the purpose of which is to compensate the plaintiff for proven loss. The restitution of profits remedy serves primarily as a deterrent. Bogert, Trusts and Trustees, supra, Sec. 543 at 218. Requiring the fiduciary to disgorge his own unjustly acquired gains serves a punitive as well as a compensatory function if no loss to the beneficiary is proven. To require him to account for the gains of others still [1112] more plainly operates to deter him and other fiduciaries from disloyalty. Id.; D. Dobbs, Handbook on the Law of Remedies, supra, at 224.

      25

      So the trial court could have held Gelfand accountable for the $37,500 profit made by Braums and Simms. We do not hold that the trial court was incorrect in refusing to exercise its broad equity powers to this extent. Several reasons for the court's staying its own hand are suggested. First, the court is not obligated to compel a fiduciary to reimburse the beneficiary for third party profits. Thus, the authorization for such a remedy is not a mandatory one. Rather, it partakes of a discretionary equitable character. See, e.g., Morrissey v. Curran, 650 F.2d 1267, 1282 (2nd Cir. 1981) (surcharge of fiduciary may be permitted when warranted by the facts); In re Combined Metal Reduction Co., 557 F.2d 179, 194 (9th Cir. 1977) (equity courts have the "power" to surcharge trustees). Second, the flexibility and concern for doing justice that are central to equity are another factor. See Restitution and Implied Contracts, 66 Am.Jur.2d Sec. 3. It requires a case by case evaluation of all relevant circumstances whenever restitution of third party profits is sought. See generally McGrath v. Hilding, 41 N.Y.2d 625, 394 N.Y.S.2d 603, 606, 363 N.E.2d 328, 331 (1977); Buchanan v. Brentwood Federal Savings & Loan Association, 457 Pa. 135, 320 A.2d 117, 126 (1974). From consideration of the evidence and the court's findings, it is our conclusion that the facts support the trial court's decision.

      26

      One factor which deserves prominent mention is that Horizon did not have a policy which forbade land purchases by employees or required disclosure in such situations. Other Horizon executives had bought property from Horizon for their own business interests. As a matter of fact, the evidence shows that Horizon employees could obtain a 20% discount on purchases of unimproved property. With respect to the sale of Barranca Estates to B & C Enterprises, Horizon's management executives were not wholly ignorant of the circumstances surrounding the transaction. The Tucson central office set the $165,000 sales price for the tract, and Horizon's Vice-President in Charge of Sales, S. P. Abrams, signed the B & C option purchase agreement himself.

      27

      Further elements supporting the trial court's decision are the non-existence of a strict trusteeship applicable to the two-thirds interest, see Mosser v. Darrow, 341 U.S. 267, 271, 71 S.Ct. 680, 682, 95 L.Ed. 927 (1951) (trustee was held liable for profits made by employees, in part because the case involved "a strict trusteeship, not one of those quasi-trusteeships in which self-interest and representative interests are combined"), and the susceptibility of the other two B & C partners, Braums and Simms, to an action to recover profits (though Braums now lives in Florida). See, e.g., Craig v. Parsons, supra, 22 N.M. 293, 161 P. 1117, 1119 (1916). There are special rationales for holding fiduciaries liable for third-party profits, such as the possibility of reciprocal tipping arrangements. But Securities and Exchange Commission v. Texas Gulf Sulphur Co., 446 F.2d 1301, 1308 (2nd Cir. 1971), is probably inapplicable to a case having facts like the facts at bar. There is no evidence that Braums and Simms were in any position to return Gelfand's favor through questionable real estate transactions or other means. In addition, the Barranca Estates transaction appears to be an isolated incident in a long term of useful service by Gelfand to Horizon. See Douthwaite, Profits and Their Recovery, supra, at 374 (total forfeiture may be inappropriate where transaction complained of was isolable from fiduciary's conduct in general).

      28
      B. How Much Should be Paid to Gelfand as Commission on the $900,000 Sale of the Paradise View Apartments?
      29

      Gelfand's original claim was that he is entitled to three percent, or a total of $27,000. Horizon maintained that he is entitled to, at most, three-tenths percent, or $2,700. However, the trial court found the correct figure to be one percent, and awarded $9,000. Horizon reiterates its original position on this appeal.

      30

      [1113] An important factor to consider here is that Gelfand was not directly involved in the Paradise View Apartments sale. Any claim that he has is based upon his supervisory position. He testified that an associate of a real estate broker, McCanna Real Estate, had expressed an interest in the property while he and Gelfand were playing golf together. Gelfand then contacted Horizon's manager, who set a price on the property. Eventually a sale was negotiated between Horizon's management in Tucson, the broker, McCanna Real Estate, and the ultimate purchasers, a Mr. and Mrs. Cox. Both parties substantially agree that Gelfand did not actually introduce the purchaser to the seller, and hence was not the immediate or procuring cause of the sale under New Mexico law. Wilson v. Sewell, 50 N.M. 121, 171 P.2d 647 (1946); Adams v. Thompson, 87 N.M. 113, 529 P.2d 1234 (Ct.App.1974).

      31

      Since Gelfand was not the direct sales representative he would not be entitled to the sales commission as such. Nevertheless the trial court ruled that Gelfand, as district manager of the district where the sale transpired, was entitled to a one percent "override", irrespective of the extent of his involvement in the transaction. The memorandum which is referred to above, of June 28, 1976, established the commissions generally applicable to Gelfand's work. It provided that the district manager would receive a one percent override on developed commercial property sold at the established offering price.

      32

      The trial court's findings of fact that Gelfand was entitled to a one percent override pursuant to the parties' compensation agreement is to be disturbed only if clearly erroneous. Such a ruling is permissible only if the finding is unsupported by substantial evidence, Federal Security Ins. Co. v. Smith, 259 F.2d 294, 295 (10th Cir. 1958), or "the reviewing court * * * is left with the definite and firm conviction that a mistake has been committed." United States v. United States Gypsum Co., 333 U.S. 364, 394-95, 68 S.Ct. 525, 541, 92 L.Ed. 746 (1948).

      33

      It is Horizon's position that Gelfand was bound by his contention at trial that the Paradise View Apartments sale was subject to the same commission formula employed in the sale of the Rio Motel and Apartments. That formula provided for a total commission of five percent, to be divided as follows:

      34
      Forty percent of the five percent (or two percent of the total sales price) would go to Horizon; the other sixty percent of the five percent (or three percent of the total sales price) would be further divided, ninety percent going to the salesman and five percent each to the district manager and broker.
      35

      This would have provided Gelfand with a sum less than the one percent of the sales price. Gelfand originally contended that he was entitled to the entire sixty percent of the five percent, or three percent of the total, because he acted as a salesman, broker and district manager. Horizon insists that Gelfand is entitled to, at most, the ten percent of six percent of five percent, or three-tenths percent of the total.

      36

      The trial court, in our view, was correct in arriving at the one percent figure. No special written agreement governed this transaction, unlike the Rio Motel sale. Horizon cites testimony that all commissions on sales of improved property with buildings were individually determined by the company either before or after the fact. But it can just as well be reasoned that the Paradise View property fits within the parties' definition of developed commercial property in the 1976 memo that established applicable commission rates. There is evidence in support of the conclusion that the 1976 memo governed the sale. In the purchase offer for the Paradise View Apartments, the seller, Horizon, agreed to pay to the broker, McCanna, a $54,000 commission, which is six percent of the sales price of $900,000. That is the same amount that the broker or sales representative would receive under the 1976 memo. One could logically infer that Horizon was bound to pay an additional one percent override to the district manager, Gelfand, who had played [1114] some role in the sale, even though a non-Horizon broker had acted as sales representative. After all, this was in accordance with the obligations which Horizon undertook in the 1976 memo. Moreover, other evidence supports the proposition that Horizon management believed that Gelfand was entitled to a one percent commission on the sale. A letter written to Gelfand in February, 1979, by the then President of Horizon, Sidney Nelson, included in its compilation of the commissions to which Gelfand was thought to be entitled the following notation:

      37
      A. Paradise Apartments, for a price of $900,000 — Commission 1%
      38

      So it must be concluded that the trial court did not make any mistake in finding that Horizon management's initial acknowledgement of the amount owed Gelfand on the Paradise View Apartments sale was at least persuasive.

      39

      It is our conclusion that substantial evidence supports the trial court's decision across the board. Accordingly, even if this court can find some support for the appellant's position, the ruling of the trial court should stand. "If, from established facts, reasonable men might draw different inferences, appellate courts may not substitute their judgment for that of the trial court." Federal Security Ins. Co. v. Smith, supra, at 295.

      40

      Judgment of the trial court should be, and the same is, hereby affirmed.

      41

      [1] Honorable Aldon J. Anderson, Chief Judge, United States District Court, District of Utah, sitting by designation.

    • 2.3 DENTAL HEALTH PRODUCTS INC. v. Ringo Dist. Court

      1
      DENTAL HEALTH PRODUCTS, INC., Plaintiff,
      v.
      FRANK RINGO, et al., Defendants.
      2
      Case No. 08-C-1039.
      3

      United States District Court, E.D. Wisconsin.

      4
      August 24, 2011.
      5
      DECISION AND ORDER
      6
      WILLIAM C. GRIESBACH, District Judge.
      7

      Plaintiff Dental Health Products, Inc., based in New Franken, Wisconsin, sells dental supplies to dentists throughout the country.[1] Defendant Frank Ringo began working for Plaintiff in 2002 and became Illinois branch manager in 2005. He resigned effective August 1, 2008, after which he began working for a company called Dental Equipment & Supply of Illinois, Inc. ("DESI"), which had been set up by his wife, Tammy. Defendant David Cornejo also joined DESI. In Ringo's version, he left after becoming frustrated with a new manager. In Plaintiff's view, Ringo left because he thought he could make more money competing with his former employer.

      8

      In any event, both Ringo and Cornejo were subject to confidentiality and non-compete agreements. As applicable here, the agreements precluded them from contacting Plaintiff's customers for 90 days after their resignation. During his employment with Plaintiff, Ringo maintained a company called J&M; Professional Contractors, Inc. According to Plaintiff, Ringo used J&M; as a front to divert dental sales business to himself as early as 2007, a year before he left. For example, he made a sale to a dental office in Chicago with an invoice dated November 1, 2007. (PPFOF ¶ 26.) Plaintiff also asserts that Ringo was in contact with the office of Drs. Sullivan and Gorman during the 90-day non-compete period following his exit from Plaintiff's company. In addition, Plaintiff asserts that shortly before they left, Ringo and Cornejo arranged for the hard drive on Ringo's company computer to be copied. Plaintiff viewed this with alarm and spent nearly $16,000 on computer experts to determine what Ringo might have done with its computer. Ringo asserts that he merely made the copy to "protect" himself and sent the copy to his attorneys without ever viewing the information himself. Although several factual disputes exist, they are not material to my analysis below.

      9
      II. Analysis
      10

      Defendant Dental Equipment & Supply of Illinois, Inc. ("DESI") has moved for summary judgment on the claims brought against it. Plaintiff has filed motions seeking partial summary judgment against Ringo and Cornejo. It concedes that issues of fact preclude complete relief as to damages, but argues that liability has been soundly established. Summary judgment is proper if the pleadings, discovery and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c)(2). Local Rules also require that pro se litigants such as Ringo be alerted that admissible documentary evidence will be accepted by the Court as being true unless the party unrepresented by counsel submits the party's own affidavit, declaration, or other admissible documentary evidence contradicting the factual assertion. Civil L. R. 56(a). Ringo received the requisite pro se notice.

      11
      A. Plaintiff's Motion for Partial Summary Judgment
      12

      Plaintiff has moved for partial summary judgment. It asserts it is entitled to judgment as a matter of law against Ringo for his breach of his duty of loyalty and violation of his non-compete agreement. It further asserts that Ringo and Cornejo are liable for violations of the Computer Fraud and Abuse Act. Finally, it claims it is entitled to judgment on Ringo's counterclaim under the Illinois Wage Payment and Collection Act.

      13
      1. Ringo's Duty of Loyalty
      14

      Plaintiff asserts that Ringo violated his duty of loyalty to the company by making side-sales to clients during the term of his employment. Ringo, who is pro se, responds that although he did provide some construction and cabinets for a dentist in Chicago, he did so because the dentist had a dispute with Plaintiff about previous credits owed to him. (Dkt. #124 at ¶ 26.) He also argues that in 2008 he was on track to meet or exceed his 2007 sales figures for Plaintiff, meaning that even if he made a sale or two on his own, he could hardly be said to be competing with his employer in any meaningful way because he was making a lot of money for Plaintiff.

      15

      Plaintiff, however, cites a stack of invoices evidencing numerous sales through Ringo's company, J&M; Professional Contractors, Inc., some of which total thousands of dollars. (Gatewood Aff., Ex. D.) To take just one example, page two of the exhibit shows an invoice from J&M; to Dr. Curt Lang for what appears to be some $11,000 worth of dental chairs. (Id. at 2.) The invoice is dated July 22, 2008, roughly a week before Ringo left Plaintiff's employ. Ringo has not contested these bills or explained how they do not evidence competition with his employer. This is fatal, as the invoices reflect a pattern of sales of side dental equipment made during Plaintiff's employment. General Automotive Mfg. Co. v. Singer, 19 Wis.2d 528, 535, 120 N.W.2d 659, 663 (Wis. 1963) ("By failing to disclose all the facts relating to the orders from Husco and by receiving secret profits from these orders, Singer violated his fiduciary duty to act solely for the benefit of Automotive. Therefore he is liable for the amount of the profits he earned in his side line business.") Accordingly, I conclude that Plaintiff is entitled to judgment that Ringo violated the duty of loyalty. Damages will be for another day, as Plaintiff recognizes.

      16
      2. Breach of Non-compete Agreement
      17

      Plaintiff also seeks summary judgment on its claim that Ringo violated the non-compete agreement by contacting dentists about sales during the 90 days after he left the company. Ringo asserts in his response that he did not sell any products to dentists for a year after leaving Plaintiff, but he concedes that he was in contact with at least one dentist during that period. The affidavit and exhibits provided by Dr. Gorman show that Gorman purchased some $1191 worth of products through Ringo during the non-compete period. (Dkt. #109.) It appears that the purchases were made through a company called DESC, based in Iowa, rather than any of Ringo's own entities. Even so, the non-compete prevented Ringo from contacting Plaintiff's customers for the purpose of selling dental supplies, regardless of where those supplies ultimately came from. I am satisfied that Ringo's bare denial of liability does not overcome the evidence in the record, limited though it may be. Once again, however, a determination of damages must await further proceedings.

      18
      3. Computer Fraud and Abuse Act
      19

      Soon before leaving, Ringo asked David Cornejo if Cornejo could make a copy of the hard drive on Ringo's laptop computer. Cornejo arranged for a copy to be made. Plaintiff asserts that this conduct violated the Computer Fraud and Abuse Act ("CFAA"), 18 U.S.C. § 1030(a)(2)(C). That section creates penalties for anyone who "intentionally accesses a computer without authorization or exceeds authorized access, and thereby obtains . . . information from any protected computer if the conduct involved interstate or foreign communication."

      20

      In denying Ringo's motion to dismiss, I found that the fact that Ringo was employed by Plaintiff at the time he accessed its computer did not necessarily mean that he was authorized to access that computer. (Dkt. #17 at 12-13.) The Seventh Circuit has held that an employee's "breach of his duty of loyalty terminated his agency relationship . . . and with it his authority to access the laptop, because the only basis of his authority had been that relationship." International Airport Centers, L.L.C. v. Citrin, 440 F.3d 418, 420-21 (7th Cir. 2006). Thus, Plaintiff argues that because it is clear that Ringo violated his duty of loyalty, his "authorization" to access his employer's computer ended. In other words, once Ringo had determined to leave the company and decided to get a copy of the hard drive, he had crossed the line and was no longer authorized to do what he did. In short, Citrin makes clear that most employee disloyalty cases can be pled as CFAA cases, because a disloyal employee has forfeited his right to access his employer's computer.

      21

      Most of the time merely "accessing" a computer will not result in damages, much less damages in excess of the $5,000 minimum prescribed by the CFAA. Here, Plaintiff does not suggest that Ringo's accessing the information caused its computer system any damage or resulted in any competitive losses. After all, Ringo, a long-time salesman, knew most of the information by heart or could have developed it himself with little effort. (Ringo also denies actually accessing the hard drive once it was copied. He states that he copied the hard drive to protect himself rather than to access any confidential information.) Instead, Plaintiff argues that it spent nearly $16,000 on a computer forensic expert to determine the extent of Ringo's unauthorized access. This was a reasonable reaction to the knowledge that one of its key salesman had left the company in order to compete with it and had made a copy of a company hard drive before doing so. See EF Cultural Travel BV v. Explorica, Inc., 274 F.3d 577, 584-85 (1st Cir. 2001) ("loss" includes costs incurred to assess damage to or breach of computer security). Ringo has not contested the damages. Accordingly, I conclude Plaintiff is entitled to compensation for its "loss" of $15,865.88. (Gatewood Aff., Ex. I.)

      22
      4. Ringo's Counterclaim
      23

      Ringo has filed a counterclaim seeking relief under the Illinois Wage Payment and Collection Act, 815 ILCS 115. He asserts that Plaintiff wrongfully withheld commissions he had earned, failed to compensate him for vacation time, and owed him for health insurance Ringo paid for while he was a manager. (Dkt. #55 at 35-36.) Plaintiff argues that the Illinois Wage Payment and Collection Act does not apply to it because it is not an Illinois company.

      24

      Section 115 states that "this Act applies to all employers and employees in this State . . ." 815 ILCS 115/1. "In plain, grammatically correct English, then, the Wage Act applies to a group consisting of employers and employees, all of whom are in Illinois." Glass v. Kemper Corp., 920 F. Supp. 928, 931 (N.D. Ill. 1996). Plaintiff DHPI, as the answer admits, is a corporation incorporated under Wisconsin law with its principal place of business in New Franken, Wisconsin. It is not, therefore, an employer "in" Illinois. Maxwell v. Vertical Networks, Inc., 2005 WL 950634, *10 (N.D. Ill. 2005) ("Vertical is based in California and is not an Illinois employer. It follows that Plaintiff cannot bring an Illinois Wage Act claim against Vertical . . .") Accordingly, the Wage Act counterclaim will be dismissed.

      25
      B. DESI's Motion for Summary Judgment
      26

      In the amended complaint, Plaintiff brought three claims against Defendant DESI, the company set up by Ringo and his wife. First, Plaintiff claimed that DESI misappropriated its trade secrets and confidential information. Second, it claimed that the company aided and abetted Ringo's breach of his agency duty to Plaintiff. Finally, Plaintiff claimed that DESI tortiously interfered with Ringo's contract with Plaintiff.

      27
      1. Misappropriation of Trade Secrets or Confidential Information
      28

      Plaintiff first claims that DESI misappropriated its trade secrets and other confidential information. The information includes information that was on Ringo's hard drive, such as a sales report indicating a description of items sold to three customers, as well as their price and gross profit. Similar information about one customer, Dr. Stolarz, was emailed by Ringo to his wife.

      29

      Plaintiff has all but conceded that the information taken by Ringo does not qualify as trade secrets. It has not contested DESI's trade secret analysis, which posited that customer lists and basic financial information about clients does not constitute trade secrets. Hecny Transp., Inc. v. Chu, 430 F.3d 402, 404 (7th Cir. 2005) (customer information not trade secret unless not known in the trade). Here, the identities of dentists are not secret information. Although it is conceivable that some price and quantity information about a given customer could constitute a trade secret, Plaintiff has not cited any case supporting such a conclusion. Plaintiff cites the legal standard for a trade secret, but then does not explain how any of the specific information at issue here meets that standard.

      30

      Instead, Plaintiff argues that even if the information is not technically a trade secret, it is still "confidential" and deserving of protection. DESI argues, however, that there is no independent cause of action for misappropriating "confidential information," and so there must be some independent basis for such a claim. It argues that under Burbank Grease Services LLC v. Sokolowski, any other actions are preempted by Wisconsin's Uniform Trade Secrets Act ("UTSA"). 2006 WI 103, 294 Wis.2d 274, 717 N.W.2d 781 (Wis. 2006). In that case, the state supreme court found that Wisconsin's UTSA was intended to "replace all pre-existing definitions of `trade secret' and remedies for tort claims dependent solely on the existence of a specific class of information statutorily defined as `trade secrets.'" Id. at ¶ 33. But in overruling the court of appeals, the supreme court found that the UTSA left "available all other types of civil actions that do not depend on information that meets the statutory definition of a `trade secret.'" Id. Thus, the Burbank case does not mean that the UTSA is the exclusive means of protecting confidential information. Instead, it holds that causes of action can still exist relating to such information so long as they do not depend on the statutory definition of a trade secret.

      31

      Thus, while it is clear that the UTSA does not bar all non-trade secret claims relating to confidential information, it is equally clear that there is no statutory or common law claim for misappropriation of "confidential" information if that information is not a trade secret. There must be some independent basis — such as a contract — upon which to bring such a claim. Recognizing this, Plaintiff argues that the misappropriation claim is actually brought pursuant to the parties' confidentiality agreement. During Ringo's employment, the parties had contractually agreed, in a confidentiality agreement, that Ringo would keep the information at issue confidential. (Dkt. 33, Ex. C.) That agreement broadly defines confidential information to include such things as customer lists, habits, buying information, customer identity, and the like. (Id.) Ringo agreed to keep this information confidential and to not use it himself. Thus, in Plaintiff's view, this confidentiality agreement governs the scope of what is confidential and protected.

      32

      Even if the information qualifies under the agreement's definition of confidentiality, however, DESI was not a party to that agreement. That is, assuming Plaintiff and Ringo agreed to define confidentiality more broadly than the trade secret statute, DESI cannot somehow be bound by that definition. Ultimately, Plaintiff cannot identify any basis — statutory, common law, or contractual — upon which to bring a "misappropriation of confidential information" claim against DESI. Accordingly, the claim will be dismissed.

      33
      2. DESI's Aiding and Abetting
      34

      The second claim against DESI alleges that DESI aided and abetted Ringo's breach of his duty of loyalty to Plaintiff, his employer. "A person who, without being privileged to do so, intentionally causes or assists an agent to violate a duty to his principal is subject to liability to the principal. Under this provision, intention to cause or assist a violation of duty is the controlling consideration, not malice or personal profit." St. Francis S & L Ass'n v. Hearthside Homes, Inc., 65 Wis.2d 74, 81, 221 N.W.2d 840, 844 (Wis. 1974) (quoting Rest. (2d) Agency § 312). Plaintiff explains that this claim is founded on its allegation that Tammy Ringo created DESI and encouraged Frank to misappropriate confidential information from his employer. In addition, Plaintiff argues that Ringo was placing orders for customers for his new business even while still employed by Plaintiff.

      35

      The first aspect of this claim fails for the reasons set forth earlier. The information at issue is not protected by trade secret law, and there is no other independent authority that would bind DESI and prohibit it from "abetting" an employee's use of such information. Plaintiff has not cited any precedent for an aiding and abetting claim based on an employee's use of information that is not protected by trade secret law.

      36

      But Plaintiff also argues that the aiding and abetting claim is based on Tammy Ringo's idea to set up her own business and the encouragement she gave her husband to join her and compete with Plaintiff. According to Plaintiff, Tammy suggested in early 2008 that she could run a dental sales company and Frank could be the salesman. The two formed DESI in June 2008, and DESI began making sales in August 2008, soon after Frank left Plaintiff's employ. This is the extent of the aiding and abetting claim.

      37

      The problem is that such a claim would apply to anyone who solicits an employee or encourages the employee to start a new company. The facts cited by Plaintiff merely indicate that Tammy Ringo "encouraged" Frank to start a new company with her; he did so; and they began selling products soon after he left Plaintiff. The duty of loyalty does not mean abject slavery and unending devotion to one's employer; it simply means that a key employee should not be working at cross purposes while he is employed. Accepting the Plaintiff's view would mean any business that offers a job to a presently-employed person could be liable for aiding and abetting, and surely that is not the intent of such a claim. There has to be more than simple encouragement to begin a new career, and here Plaintiff does not offer any evidence that DESI went beyond that. Above I concluded that the evidence showed that Frank Ringo violated his duty of loyalty by engaging in specific acts of disloyalty, but none of these acts have been linked with DESI. Even using Plaintiff's facts, all DESI did (through Tammy Ringo) was encourage Frank to begin a new company, and that is not enough to violate any duties of loyalty. Accordingly, this claim will be dismissed as well.

      38
      3. Tortious Interference with Contract
      39

      Finally, Plaintiff alleges that DESI tortiously interfered with Frank Ringo's non-compete agreement. It argues that Frank Ringo made contact with certain dentists during the non-compete period and sold them products through DESC, the company based in Iowa. DESI argues that it made no sales during the 90-day period after Ringo left Plaintiff's employ. Thus, even if Frank was involved with another company during that period, DESI was not interfering with any non-compete agreement.

      40

      Plaintiff's argument amounts to little more than an assertion that because Frank and Tammy Ringo were married, she must have known that Frank was subject to a non-compete agreement. But whether or not she knew about the non-compete, there is simply nothing in the record suggesting that Tammy's company, DESI, had anything to do with interfering with that non-compete during the 90-day period. Plaintiff suggests that a jury could infer that Tammy discussed her husband's use of the Iowa company to sell products during this period, but that is hardly tortious interference.

      41

      The simple fact that Tammy had an awareness of a non-compete agreement does not mean that she or her company interfered with that agreement. Accordingly, the tortious interference claim will also be dismissed.[2]

      42
      C. Ringo's Motion to Compel
      43

      Frank Ringo has also brought a motion to compel production of numerous documents he contends are essential to his case. Many of these documents relate to his wage claim, which is dismissed in this order, rendering the motion to compel moot. Other of the documents sought involve Ringo's performance history with the company, and that history is not relevant to any defense to the claims asserted here. To the extent the motion to compel seeks information about damages — such as Ringo's own sales to Plaintiff's clients — damages will be the Plaintiff's burden to prove. Plaintiff will have to rely on documents (such as those attached to its affidavits) establishing its damages, and Plaintiff has already had the ability to read these. In short, the documents sought in the motion have either been produced or are not relevant to any of Ringo's defenses. Accordingly, the motion to compel and for sanctions will be denied.

      44
      III. Conclusion
      45

      In sum, Plaintiff's motion for partial summary judgment against Frank Ringo is GRANTED, as Ringo has not created a genuine issue of material fact as to his liability for breach of loyalty and breach of the non-compete agreement. His liability under the CFAA is also established, with damages of $15,865.88. Defendant DESI's motion for summary judgment is also GRANTED, as Plaintiff has not provided any evidence from which a jury could conclude that DESI was involved in Ringo's actions. The motion to compel and for sanctions is DENIED. Given that the issues have been narrowed significantly, it is hoped that the parties can come to an agreement on damages.[3]

      46

      SO ORDERED.

      47

      [1] The parties have used a number of abbreviations, such as DHPI, DESC, and DESI. Given the similarity of these abbreviations, to avoid confusion I have chosen to identify the parties simply as "Plaintiff" and DESI.

      48

      [2] Although Plaintiff cites the confidentiality agreement in its brief, it does not argue that DESI tortiously interfered with that agreement.

      49

      [3] I have not addressed the motion for summary judgment brought against David Cornejo, who has recently filed for bankruptcy protection. All proceedings as to Cornejo are therefore stayed.

    • 2.4 King v. Bankerd

      General fiduciary principles and the limits of authority

      1
      303 Md. 98 (1985)
      2
      492 A.2d 608
      3
      ARTHUR V. KING
      v.
      HOWARD R. BANKERD.
      4
      No. 150, September Term, 1983.
      5

      Court of Appeals of Maryland.

      6
      May 27, 1985.
      7

      John E. Clapp, Rockville, for appellant.

      8

      Cleopatra Campbell, Frederick, for appellee.

      9

      Argued before MURPHY, C.J., ELDRIDGE, COLE, DAVIDSON,[1] RODOWSKY and COUCH, JJ., and JAMES C. MORTON, Jr., Associate Judge of the Court of Special Appeals (retired), specially assigned.

      10
      COLE, Judge.
      11

      The single issue presented in this case is whether a power of attorney authorizing the agent to "convey, grant, bargain and/or sell" the principal's property authorizes the agent to make a gratuitous transfer of that property.

      12

      The facts are uncomplicated. Howard R. Bankerd (Bankerd) and his wife, Virginia, owned, as tenants by the entirety, a home in Montgomery County, Maryland. They resided there until 1966 when Mrs. Bankerd moved out as a result of marital problems. Bankerd continued to live at the property until July 1968, when he "left for the west." Mrs. Bankerd thereupon resumed residency of the property. For the ensuing twelve years, Bankerd lived at various locations in Nevada, Colorado, and Washington, and he made no payments on the mortgage, for taxes, or for the maintenance and upkeep of the home.

      13

      Before Bankerd's departure, he executed a power of attorney to Arthur V. King, an attorney with whom he was acquainted. From 1971 to 1974, Bankerd did not communicate or correspond with King in any manner. In 1975, however, King sent Bankerd a letter enclosing an updated power of attorney because the Washington Suburban Sanitary Commission was about to put a sewer adjacent to the subject property, and King believed the new power would be beneficial. This power of attorney, which is the center of the instant litigation, was executed by Bankerd and returned to King. Dated October 30, 1975, this power of attorney provides:

      14
      KNOW ALL MEN BY THESE PRESENTS, that I, Howard R. Bankerd, hereby make, constitute and appoint ARTHUR V. KING, my attorney for me, and in my name to convey, grant, bargain and/or sell the property designated in the Montgomery County land record as Lot 9 of an unrecorded subdivision as recorded in Liber 3027 at folio 293, situated at 14026 Travilah Road, Rockville, Maryland on such terms as to him may seem best, and in my name, to make, execute, acknowledge and deliver, good and sufficient deeds and conveyances for the same with or without covenants and warranties and generally to do and perform all things necessary pertaining to the future transfer of said property, and generally to do everything whatsoever necessary pertaining to the said property.
      15

      After granting this power of attorney, Bankerd had no further communication with King until 1978.

      16

      Mrs. Bankerd, who as noted above had been residing at and maintaining the subject property since 1968, requested King in September 1977 to exercise the power of attorney and to transfer Bankerd's interest in the property to her. King was aware that Mrs. Bankerd was nearing retirement and that she was "saddled" with a property she could neither sell nor mortgage. Consequently, King attempted to locate Bankerd. King wrote to Bankerd on at least two occasions at a Carson City, Nevada hotel where Bankerd had been living. Only one letter was returned. King sent a third letter to Bankerd to another Carson City address, but that letter was also returned. King also made several other efforts, albeit unsuccessful, to obtain Bankerd's address.

      17

      Mrs. Bankerd informed King that her husband had once attempted to give the property away to a neighbor on the condition that the neighbor assume the mortgage payments. Consequently, King asserted that he believed Bankerd "didn't give a damn" about the property, that Bankerd had abandoned his interest in the property, and that given Bankerd's age (approximately sixty-nine years), King believed that Bankerd might even be deceased. King therefore conveyed Bankerd's interest in the property to Mrs. Bankerd by deed dated June 21, 1978. Mrs. Bankerd paid no consideration for the transfer and King received no compensation for the conveyance on behalf of Bankerd. Mrs. Bankerd thereafter sold the property to a third party for $62,500.

      18

      In 1981 Bankerd filed suit against King in the Circuit Court for Montgomery County alleging breach of trust and breach of fiduciary duty in King's conveyance of Bankerd's interest in the subject property in violation of the power of attorney. After the completion of the discovery proceedings each party moved for summary judgment. On August 12, 1982, the trial court granted summary judgment to Bankerd against King and awarded $13,555.05 in damages on the basis that King had negligently violated the fiduciary relationship that existed between those two parties. The Court of Special Appeals affirmed, holding that the broad language of the power of attorney did not authorize the conveyance without consideration in favor of Bankerd. King v. Bankerd, 55 Md. App. 619, 465 A.2d 1181 (1983).[2] We granted King's petition for certiorari to consider the issue of first impression presented in this case.

      19
      I
      20

      King basically contends that the language contained in a document granting a broad power of attorney be viewed in light of the surrounding circumstances to determine whether the attorney in fact had authority to transfer the property without consideration. Based on this contention, King concludes that the second power of attorney did not as a matter of law preclude him from gratuitously transferring Bankerd's property. We disagree.

      21

      Similar to other jurisdictions, Maryland appellate courts have had relatively few occasions to analyze powers of attorney. Because we last addressed the substantive law relating to powers of attorney over a half century ago, see Kaminski v. Wladerek, 149 Md. 548, 131 A. 810 (1926), we shall review the relevant rules relating to powers of attorney again.[3]

      22

      Broadly defined, a power of attorney is a written document by which one party, as principal, appoints another as agent (attorney in fact) and confers upon the latter the authority to perform certain specified acts or kinds of acts on behalf of the principal. See 3 Am.Jr.2d Agency § 23, at 433 (1962); see also Long v. Schull, 184 Conn. 252, 256, 439 A.2d 975, 977 (1981) (per curiam); Realty Growth Investors v. Council of Unit Owners, 453 A.2d 450, 454 (Del. 1982); Bank of America, National Trust & Savings Association v. Horowytz, 104 N.J. Super. 35, 38, 248 A.2d 446, 448 (1968); Cabarrus Bank & Trust Co. v. Chandler, 63 N.C. App. 724, 726, 306 S.E.2d 184, 185 (1983), review denied, 311 N.C. 303, 317 S.E.2d 679 (1984). This instrument, which delineates the extent of the agent's authority, is a contract of agency that creates a principal-agent relationship. See Long v. Schull, supra, 184 Conn. at 256, 439 A.2d at 977; Restatement (Second) of Agency §§ 1, 34 (1958) [hereinafter cited as Restatement].

      23

      Various rules govern the interpretation of powers of attorney. As Chief Judge Murphy observed for this Court in Klein v. Weiss, 284 Md. 36, 61, 395 A.2d 126, 140 (1978), one "well settled" rule is that powers of attorney are "strictly construed as a general rule and [are] held to grant only those powers which are clearly delineated[.]" Although our predecessors recognized this rule over a century ago in Posner v. Bayless, 59 Md. 56 (1882), they were careful to note that the rule of strict construction "cannot override the general and cardinal rule" that the court determine the intention of the parties. Id. at 60. To ascertain this intent, the Posner Court emphasized that the language used in the instrument and the object to be accomplished be viewed in light of the surrounding circumstances. See also Kaminski v. Wladerek, supra, 149 Md. at 557-58, 131 A. at 813-14 (reiterating principles); American Bonding Co. v. Ensey, 105 Md. 211, 220-22, 65 A. 921, 925 (1907) (same). Other courts of last resort have likewise embraced the rule of strict construction of powers of attorney. See, e.g., Aiello v. Clark, 680 P.2d 1162, 1166 (Alaska 1984); Fierst v. Commonwealth Land Title Insurance Co., 499 Pa. 68, 74, 451 A.2d 674, 677 (1982). See generally Comment, Construction of Written Powers of Attorney, 18 Ohio St. L.J. 129, 130 (1957) (indicating that American courts follow the strict construction principle).

      24

      Another accepted rule of construction is to discount or disregard, as meaningless verbiage, all-embracing expressions found in powers of attorney. Restatement, supra, § 34 comment h; see Von Wedel v. Clark, 84 F. Supp. 299, 300 (D.N.J. 1949); Mercantile Trust Co. v. Harper, 622 S.W.2d 345, 349 (Mo. Ct. App. 1981). Because powers of attorney are ordinarily very carefully drafted and scrutinized, courts give the terms used a technical rather than a popular meaning. Restatement, supra, § 34 comment h. In addition, ambiguities in an instrument are resolved against the party who made it or caused it to be made, because that party had the better opportunity to understand and explain his meaning. Id.; see Truck Insurance Exchange v. Marks Rentals, Inc., 288 Md. 428, 435, 418 A.2d 1187, 1191 (1980) (ambiguity in an instrument resolved against party responsible for drafting it, absent evidence indicating the intention of the parties). Finally, general words used in an instrument are restricted by the context in which they are used, and are construed accordingly. See Aiello v. Clark, supra, 680 P.2d at 1166 (quoting Gouldy v. Metcalf, 75 Tex. 455, 458, 12 S.W. 830, 831 (1889)).

      25

      In accordance with these principles, nearly every jurisdiction that has considered the issue in the case sub judice has concluded that a general power of attorney authorizing an agent to sell and convey property, although it authorizes him to sell for such price and on such terms as to him shall seem proper, implies a sale for the principal's benefit. Such a power of attorney, however, does not authorize the agent to make a gift of the property, or to convey or transfer it without a present consideration inuring to the principal. See, e.g., Von Wedel v. McGrath, 180 F.2d 716, 718-19 (3d Cir.), cert. denied, 340 U.S. 816, 71 S.Ct. 45, 95 L.Ed. 600 (1950); Von Wedel v. Clark, supra, 84 F. Supp. at 300; Aiello v. Clark, supra, 680 P.2d at 1165-67; Shields v. Shields, 200 Cal. App.2d 99, 101, 19 Cal. Rptr. 129, 130-31 (1962); Johnson v. Fraccacreta, 348 So.2d 570, 572 (Fla. Dist. Ct. App. 1977); Baldwin v. Loesel, 333 Pa. 26, 30, 3 A.2d 389, 391 (1939); Montgomery v. Nevins, 270 S.W.2d 427, 430 (Tex.Civ.App. 1954); Huntsman v. Huntsman, 56 Utah 609, 613-14, 192 P. 368, 369-71 (1920); Annot., 73 A.L.R. 884, 884 (1931); accord Fujino v. Clark, 71 F. Supp. 1, 4 (D. Hawaii 1947), aff'd, 172 F.2d 384 (9th Cir.), cert. denied, 337 U.S. 937, 69 S.Ct. 1512, 93 L.Ed. 1743 (1949); Bertelsen v. Bertelson, 49 Cal. App.2d 479, 484, 122 P.2d 130, 133 (1942); Hodges v. Surratt, 366 So.2d 768, 773-74 (Fla. Dist. Ct. App. 1978), cert. denied, 376 So.2d 76 (Fla. 1979); Thompson v. Thompson, 190 Ga. 264, 264, 9 S.E.2d 80, 83 (1940); Mercantile Trust Co. v. Harper, supra, 622 S.W.2d at 349-50; Manna v. Pirozzi, 44 N.J. Super. 227, 230-31, 130 A.2d 55, 57 (1957); In re Estate of Iannone, 431 N.Y.S.2d 904, 905, 104 Misc.2d 5, 6 (1980); Gaughan v. Nickoloff, 214 N.Y.S.2d 487, 489-90, 28 Misc.2d 555, 557-58 (1961); In re Estate of Rolater, 542 P.2d 219, 223-24 (Okla. Ct. App. 1975); Brown v. Laird, 134 Or. 150, 155-57, 291 P. 352, 354-55 (1930); Creasy v. Henderson, 210 Va. 744, 748-49, 173 S.E.2d 823, 827-28 (1970); Conrad, Seavey & Siegel, Agency, Associations, Employment, Licensing and Partnership 269 (1977).

      26

      For the reasons below, we conclude that an agent holding a broad power of attorney lacks the power to make a gift of the principal's property, unless that power (1) is expressly conferred, (2) arises as a necessary implication from the conferred powers, or (3) is clearly intended by the parties, as evidenced by the surrounding facts and circumstances.

      27

      First, the power to make a gift of the principal's property is a power that is potentially hazardous to the principal's interests. Consequently, this power will not be lightly inferred from broad, all-encompassing grants of power to the agent. Accordingly, "the agent must be circumspect with regard to the powers created — or the lack of them." Mercantile Trust Co. v. Harper, supra, 622 S.W.2d at 350.

      28

      Second, the main duty of an agent is loyalty to the interest of his principal. See Nagel v. Todd, 185 Md. 512, 516-17, 45 A.2d 326, 328 (1946) (quoting DeCrette v. Mohler, 147 Md. 108, 115, 127 A. 639, 642 (1925)); Restatement, supra, § 39 ("Unless otherwise agreed, authority to act as agent includes only authority to act for the benefit of the principal."); id. § 387 ("Unless otherwise agreed, an agent is subject to a duty to his principal to act solely for the benefit of the principal in all matters connected with his agency."). Thus, in exercising granted powers under a power of attorney, the attorney in fact is bound to act for the benefit of his principal and must avoid where possible that which is detrimental unless expressly authorized. See In re Estate of Rolater, supra, 542 P.2d at 223. We recognized these principles well over a century ago in Adams Express Co. v. Trego, 35 Md. 47 (1872), where our predecessors quoted Judge Story's treatise on agency:

      29
      Even if a general discretion is vested in the agent, it is not deemed to be unlimited. But it must be exercised in a reasonable manner, and cannot be resorted to in order to justify acts, which the principal could not be presumed to intend, or which would defeat, and not promote, the apparent end or purpose, for which the power was given.
      30

      Id. at 66-67 (quotation marks omitted). The Adams Express Court continued:

      31
      [I]t is a universal principle in the law of agency, that the powers of the agent are to be exercised for the benefit of the principal only, and not of the agent or of third parties. A power to do all acts that the principal could do, or all acts of a certain description, for and in the name of the principal, is limited to the doing of them for the use and benefit of the principal only, as much as if it were so expressed.
      32

      Id. at 67 (quotation marks omitted; emphasis in the original). Later, in Nagel v. Todd, supra, this Court explained that the principal-agent relationship demands that the agent give to the principal "`the fullest measure of service in all matters pertaining to the agency, and that he devote all his skill and ability to securing the greatest legitimate benefit and advantage for his principal.'" Nagel v. Todd, supra, 184 Md. at 516, 45 A.2d at 328 (quoting DeCrette v. Mohler, supra, 147 Md. at 115, 127 A. at 642). In light of the duties of loyalty that arise from the fiduciary relation, it is difficult to imagine how a gift of the principal's real property would be to the benefit of the principal when the power of attorney does not authorize such a gift or the principal does not intend to authorize such a gift. In short, the agent is under a duty to serve his principal with only his principal's purposes in mind.

      33

      Third, "[i]t would be most unusual for an owner of property to grant a power of attorney authorizing the attorney in fact to give his property away. If a person has decided to make a gift of property, he or she usually decides as to who is going to be the donee." Gaughan v. Nickoloff, supra, 214 N.Y.S.2d at 490, 28 Misc.2d at 557.

      34

      A brief review of several cases that have applied these principles is instructive. For example, in Johnson v. Fraccacreta, supra, Carmella Fraccacreta owned the subject property at the time she executed a power of attorney appointing her daughter, Delores, as her attorney in fact. The power of attorney authorized Delores to "[b]argain, sell, release, convey and mortgage lands ... upon such terms and conditions, and under such covenants, as she shall think fit[.]" Delores then conveyed Carmella's property to Carmella and her husband Paolo, as tenants by the entireties. This conveyance constituted a gift to Paolo of a portion of Carmella's property by virtue of the creation of an estate by entireties with the right of survivorship. Despite these broad powers, the Johnson court held that they did not "expressly or impliedly indicate an intention to authorize a gift of the principal's property." Id. at 572.

      35

      In another case involving a power of attorney that authorized the attorney in fact to "sell, exchange, grant or convey" the principal's real property for the latter's benefit, the court held that this language did not authorize a conveyance as a gift or without a substantial consideration. See Shields v. Shields, supra, 200 Cal. App.2d at 100-01, 19 Cal. Rptr. at 130-31. Similarly, a general power of attorney authorizing an agent to "sell and convey" real property does not authorize him to make a gift of the property. See Baldwin v. Baldwin, supra, 333 Pa. at 30, 3 A.2d at 391. In the words of the Baldwin court, "[t]he authorities are unanimous as to this." Id.[4]

      36
      II
      37
      A.
      38

      This case is before us on summary judgment. In reviewing the grant or denial of a motion for summary judgment, we are concerned primarily with deciding whether a material factual issue exists, and in this regard, all inferences are resolved against the moving party. Lynx, Inc. v. Ordnance Products, Inc., 273 Md. 1, 7-8, 327 A.2d 502, 509 (1974); Salisbury Beauty Schools v. State Board of Cosmetologists, 268 Md. 32, 40-41, 300 A.2d 367, 374 (1973); see Natural Design, Inc. v. Rouse Co., 302 Md. 47, 62, 485 A.2d 663, 671 (1984). If there is a conflict between the inferences that may be drawn from that before the court, summary judgment is not proper. As Judge Smith explained in Porter v. General Boiler Casing Co., 284 Md. 402, 413, 396 A.2d 1090, 1096 (1979) (quoting Fenwick Motor Co. v. Fenwick, 258 Md. 134, 138, 265 A.2d 256, 258 (1970), "`even where the underlying facts are undisputed, if those facts are susceptible of more than one permissible inference, the choice between those inferences should not be made as a matter of law, but should be submitted to the trier of fact.'"

      39

      Under former Md.Rule 610 (now Md.Rule 2-501), when the pleadings, depositions, admissions on file, and any affidavits show that there is no genuine dispute as to any material fact and that the moving party is entitled to judgment as a matter of law, then the judgment sought shall be rendered forthwith. Coffey v. Derby Steel Co., 291 Md. 241, 246, 434 A.2d 564, 567 (1981). A material fact is a fact the resolution of which will somehow affect the outcome of the case. Lynx, Inc. v. Ordnance Products, Inc., supra, 273 Md. at 8, 327 A.2d at 509. Consequently, a dispute over a non-material fact will not preclude summary judgment.

      40

      Credibility, we note, is not an issue to be determined on summary judgment. In granting or denying a motion for summary judgment, a judge makes no findings of fact. Indeed, the function of the summary judgment procedure is not to try the case or to decide issues of fact; rather, the procedure merely determines whether there is a triable issue of fact. See Coffey v. Derby Steel Co., supra, 291 Md. at 254, 434 A.2d at 571.

      41

      Finally, when the moving party has set forth sufficient grounds for summary judgment, the opposing party must show with some precision that there is a genuine dispute as to a material fact. An opposing party can never defeat a motion for summary judgment by alleging in a general manner that there is such a dispute. See Dietz v. Moore, 277 Md. 1, 5, 351 A.2d 428, 431 (1976). With these considerations in mind, we turn to the case sub judice.

      42
      B.
      43

      The general power of attorney executed by Bankerd authorized King to "convey, grant, bargain and/or sell" the subject property "on such terms as to him may seem best." A strict construction of this broad language, however, makes clear that the instrument did not expressly authorize a gratuitous transfer of property. See Shields v. Shields, supra, 200 Cal. App.2d at 100-01, 19 Cal. Rptr. at 130-31. Because an agent must act for the benefit of his principal, we decline to interpret this broad, all-encompassing language as authority for the agent to make a gift of the principal's property.

      44

      The facts and surrounding circumstances presented in this case do not give rise to any fact or inference that King was authorized to make a gift of Bankerd's real property. In arguing that his conduct was reasonable under the circumstances, King points to his "beliefs" that Bankerd had abandoned the property, that Bankerd did not care about the property, and that Bankerd might be deceased. These arguments completely miss the mark. King's conduct could only be "reasonable" if Bankerd intended for King to give the property away. Although the facts and surrounding circumstances to which King points suggest reasons why he made the gift, they do not support an inference that Bankerd intended to authorize the gift.

      45

      Furthermore, the only evidence before the trial court that was relevant to this issue indicated that Bankerd did not intend to authorize King to give the subject property to Bankerd's wife or anyone else. In a letter Bankerd sent to King along with the executed power of attorney, Bankerd wrote that "[y]ou know if I outlive Va., [Bankerd's estranged wife] (and I'm ornery enough) you would certainly have a job on that Travilah Road (sic) [the subject property] bit if you would accept it, that is." [Emphasis in original.]. Nothing could more clearly belie an assertion that Bankerd authorized any gift of the property. Bankerd, by virtue of this correspondence, notified King that he clearly anticipated maintaining his interest in the property. Furthermore, King wrote Bankerd assuring him that if the latter executed the new power of attorney he would do nothing detrimental to Bankerd's interests. Certainly, had King believed that he was acquiring the authority to give away Bankerd's property, King would not have made this representation.

      46

      In sum, there is no genuine dispute as to any material fact. Moreover, the facts are not susceptible of more than one permissible inference. We therefore hold that the trial court did not err in granting Bankerd's motion for summary judgment.

      47

      JUDGMENT AFFIRMED.

      48

      APPELLANT TO PAY THE COSTS.

      49

      [1] Davidson, J., participated in the hearing and in the conference of the case in regard to its decision, but died prior to the adoption of the opinion by the Court.

      50

      [2] The Court of Special Appeals also rejected King's argument that Bankerd had abandoned his interest in the subject property and that summary judgment should have been denied on the basis of equitable estoppel.

      51

      [3] In this regard we note that Md.Code (1981 Repl.Vol.), § 4-107 of the Real Property Article, which requires that an agent's authority to grant property be executed in the same manner as a deed, is not at issue here.

      52

      [4] King's reliance upon Collins v. Streitz, 95 F.2d 430 (9th Cir.), cert. denied, 305 U.S. 608, 59 S.Ct. 67, 83 L.Ed. 387 (1938), and Ortman v. Streeter, 67 R.I. 325, 23 A.2d 189 (1941), is misplaced. Contrary to King's view, Collins does not state that an attorney in fact can never make a gift of the principal's property. Indeed, Collins clearly reinforces the view that an attorney in fact can make such a gift when expressly authorized to do so by the principal. King's reliance upon Ortman fares no better. Although that court remarked that "[t]he words `grant', `convey', `assign and deliver' ... are certainly broad enough to include a conveyance by way of gift as well as by way of sale[.]" id.at 326, 23 A.2d at 191, this remark was obviously made in the context of effectuating the testatrix's intent.

      53

      King also asks us to discount as "inherently suspect" the legal precepts set forth in Fujino v. Clark, 71 F. Supp. 1 (D.Hawaii 1947), aff'd, 172 F.2d 384 (9th Cir.), cert. denied, 337 U.S. 937, 69 S.Ct. 1512, 93 L.Ed. 1743 (1949). We decline to do so. Fujino simply held that attorneys in fact cannot make a gift of the principal's property when they lack the express or implied power to do so. That the property was subsequently seized by the federal government during World War II on the basis that the principal, a Japanese citizen, was the beneficial owner of the property, and that the donee, a United States citizen, was controlled by the principal, does not disturb the basic rationale underlying that holding.

    • 2.5 Opportunities

      Agents will often find themselves presented with opportunities to make a financial gain. The question is to whom do those opportunities belong? The principal or the agent?

      • 2.5.1 GENERAL AUTOMOBILE MFG. CO. v. Singer

        1
        19 Wis.2d 528 (1963)
        2
        GENERAL AUTOMOBILE MANUFACTURING COMPANY, Respondent,
        v.
        SINGER, Appellant.
        3

        Supreme Court of Wisconsin.

        4
        March 6, 1963.
        5
        April 2, 1963.
        6

        [529] For the appellant there was a brief by Camp & Camp of Wauwatosa, and oral argument by Mark M. Camp.

        7

        For the respondent there was a brief by Hersh & Corry of Milwaukee, and oral argument by Frederick Hersh.

        8
        BROWN, C. J.
        9

        Appellant's brief informs us, "The evidence adduced at the trial was for the most part without dispute and, therefore, the trial court's findings are not conclusive upon appeal," citing Weigell v. Gregg (1915), 161 Wis. 413, 154 N. W. 645, and other cases. Insofar as it pertains [530] to undisputed evidence we agree with this proposition. We have carefully reviewed the evidence and have ourselves reached conclusions as stated by the trial court and set forth in its findings of fact, as follows:

        10

        "3. That heretofore and on or about the 28th day of March, 1953, the plaintiff hired and employed the defendant as general manager of its business and affairs and the defendant accepted such employment under and pursuant to a written contract.

        "4. That said contract of employment was for a term of one (1) year from March 30, 1953, to March 29, 2954, and was renewed for a period of two (2) years to March 28, 1956, and thereafter was extended for an indefinite period of time and continued in existence with no change either in the duties the defendant performed or the compensation the defendant received (one reduction in rate mutually agreed to) including the commission of 3% of the plaintiff's gross sales. That the said contract was finally terminated and the defendant left the employ of the plaintiff on or about May 7, 1959.

        "5. That subsequent to March 28, 1954, the defendant was in the employ of the plaintiff on the same terms and conditions provided in the written contract of March 28, 1953, subject to terminate at the pleasure of either party.

        "6. That in and by said contract as aforesaid, the plaintiff promised and agreed to pay to the defendant as compensation, a fixed monthly salary together with a sum equal to 3% of the gross sales of the plaintiff.

        "7. That the plaintiff performed all of the terms, covenants, and conditions of said contract of employment on its part to be performed during the term thereof.

        "8. That in and by said contract, in consideration of compensation to be paid by the plaintiff to the defendant, the defendant promised and agreed:

        "A. To devote his entire time, skill, labor, and attention to said employment, during the term of this employment, and not to engage in any other business or vocation of a permanent nature during the term of this employment, and to observe working hours for five and one-half days.

        [531] "B. Not to, either during the term of his employment, or at any time thereafter, disclose to any person, firm, or corporation any information concerning the business or affairs of the employer which he may have acquired in the course of or as incident to his employment hereunder, for his own benefit, or to the detriment or intended or probable detriment of the employer.

        "9. That the defendant under the agreement as manager was a fiduciary agent with respect to solicitation of business for the plaintiff and as such was bound to the exercise of the utmost faith and loyalty to his principal and employer."

        Although stated as a finding of fact, Finding 10 is mainly a conclusion of law. It produces the principal issue in the case and deserves further discussion. It reads:

        "10. That the defendant breached his contract of employment with the plaintiff and violated the duty of loyalty which he owed to the plaintiff and his fiduciary duty of general manager thereof during the existence of such employment by engaging in business activities directly competitive with the plaintiff, to wit, by obtaining orders from a customer for his own account."

        The record leaves no room for doubt of the correctness of Finding 11, as follows:

        "11. That thereafter, instead of turning such orders over to the plaintiff the defendant turned such orders over to other concerns to be filled, collected the proceeds thereof from the customers for his own account, and kept the profits accruing therefrom."

        11

        Finding 12 is:

        12

        "That such activities of the defendant were carried on in secret and without the knowledge of the plaintiff."

        13

        The evidence on which Finding 12 is based is in dispute. It is not against the great weight and clear preponderance of the evidence and the finding should not be disturbed.

        14

        [532] Further findings of fact that Singer breached his contract of employment, violated his fiduciary duty of general manager of Automotive, secretly engaged in competition with Automotive, and kept the profits accruing from such competition are hotly disputed. Singer also disputes the amount of his liability, if any.

        15

        Study of the record discloses that Singer was engaged as general manager of Automotive's operations. Among his duties was solicitation and procurement of machine-shop work for Automotive. Because of Singer's high reputation in the trade he was highly successful in attracting orders.

        16

        Automotive is a small concern and has a low credit rating. Singer was invaluable in bolstering Automotive's credit. For instance, when collections were slow for work done by Automotive, Singer paid the customer's bill to Automotive and waited for his own reimbursement until the customer remitted. Also, when work was slack, Singer set Automotive's shop to make parts for which there were no present orders and himself financed the cost of materials for such parts, waiting for recoupment until such stockpiled parts could be sold. Some parts were never sold and Singer personally absorbed the loss upon them.

        17

        As time went on, a large volume of business attracted by Singer was offered to Automotive but which Singer decided could not be done by Automotive at all, for lack of suitable equipment, or which Automotive could not do at a competitive price. When Singer determined that such orders were unsuitable for Automotive he neither informed Automotive of these facts nor sent the orders back to the customer. Instead, he made the customer a price, then dealt with another machine shop to do the work at a less price, and retained the difference between the price quoted to the customer and the price for which the work was done. Singer was actually behaving as a broker for his own profit in a [533] field where by contract he had engaged to work only for Automotive. We concur in the decision of the trial court that this was inconsistent with the obligations of a faithful agent or employee.

        18

        Singer finally set up a business of his own, calling himself a manufacturer's agent and consultant, in which he brokered orders for products of the sort manufactured by Automotive, —this while he was still Automotive's employee and without informing Automotive of it. Singer had broad powers of management and conducted the business activities of Automotive. In this capacity he was Automotive's agent and owed a fiduciary duty to it. 13 Am. Jur., Corporations, p. 948, sec. 997. Under his fiduciary duty to Automotive Singer was bound to the exercise of the utmost good faith and loyalty so that he did not act adversely to the interests of Automotive by serving or acquiring any private interest of his own. Bank of California v. Hoffmann (1949), 255 Wis. 165, 38 N. W. (2d) 506, 39 N. W. (2d) 280. He was also bound to act for the furtherance and advancement of the interest of Automotive. Shevel v. Tarter (1950), 256 Wis. 503, 41 N. W. (2d) 603.

        19

        If Singer violated his duty to Automotive by engaging in certain business activities in which he received a secret profit he must account to Automotive for the amounts he illegally received. 2 Am. Jur., Agency, p. 215, sec. 268.

        20

        The present controversy centers around the question whether the operation of Singer's sideline business was a violation of his fiduciary duty to Automotive. The trial court found this business was conducted in secret and without the knowledge of Automotive. There is conflicting evidence regarding this finding but it is not against the great weight and clear preponderance of the evidence and, therefore, cannot be disturbed. Central Refrigeration, Inc., v. Monroe (1951), 259 Wis. 23, 47 N. W. (2d) 438.

        21

        [534] The trial court found that Singer's sideline business, the profits of which were $64,088.08, was in direct competition with Automotive. However, Singer argues that in this business he was a manufacturer's agent or consultant, whereas Automotive was a small manufacturer of automotive parts. The title of an activity does not determine the question whether it was competitive but an examination of the nature of the business must be made. In the present case the conflict of interest between Singer's business and his position with Automotive arises from the fact that Singer received orders, principally from a third party called Husco, for the manufacture of parts. As a manufacturer's consultant he had to see that these orders were filled as inexpensively as possible., but as Automotive's general manager he could not act adversely to the corporation and serve his own interests. On this issue Singer argues that when Automotive had the shop capacity to fill an order he would award Automotive the job, but he contends that it was in the exercise of his duty as general manager of Automotive to refuse orders which in his opinion Automotive could not or should not fill and in that case he was free to treat the order as his own property. However, this argument ignores, as the trial court said, "defendant's agency with plaintiff and the fiduciary duties of good faith and loyalty arising therefrom."

        22

        Rather than to resolve the conflict of interest between his sideline business and Automotive's business in favor of serving and advancing his own personal interests, Singer had the duty to exercise good faith by disclosing to Automotive all the facts regarding this matter. 7 Am. Jur., Agency, p. 217, sec. 269. Upon disclosure to Automotive it was in the latter's discretion to refuse to accept the orders from Husco or to fill them if possible or to subjob them to other concerns with the consent of Husco if necessary, and the profit, if any, would belong to Automotive. Automotive [535] would then be able also to decide whether to expand its operations, install suitable equipment, or to make further arrangements with Singer or Husco. By failing to disclose all the facts relating to the orders from Husco and by receiving secret profits from these orders, Singer violated his fiduciary duty to act solely for the benefit of Automotive. Therefore he is liable for the amount of the profits he earned in his sideline business.

        23

        Singer contends that the doctrine of "corporate opportunity" applies in the case at bar and that the elements of the doctrine are not satisfied under the facts of this case.

        24

        The doctrine of corporate opportunity is a species of the duty of fiduciary to act with undivided loyalty. This doctrine applies to the acquisition of property, tangible or intangible, present or future, of a person who occupies a fiduciary relationship to a corporation which is in opposition to the corporation. Gauger v. Hintz (1952), 262 Wis. 333, 351, 55 N. W. (2d) 426. Although the elements of the breach of the fiduciary duty in this doctrine are similar to those in the present case, presently we are concerned with the operation of a business by an agent in competition with a corporation and the retention of secret profits arising therefrom and not with the narrow question of the acquisition of property in opposition to a corporation.

        25

        We conclude that Singer's independent activities were in competition with Automotive and were in violation of his obligation of fidelity to that corporation, as stated in Finding of Fact 10, and Singer must account for his profits so obtained.

        26

        During the trial the parties stipulated that in the event the court should find that Automotive was entitled to recover profits realized by Singer in his sideline business, Singer should be given a credit equal to three percent of the gross sales of that business. Based upon this stipulation the sum of [536] $64,088.08 would be reduced by $10,183. Although this stipulation was made in open court and entered into the record the trial court did not recognize it and assessed the amount of damages as $64,088.08, instead of $53,905.08, as the stipulation would require.

        27

        Automotive does not contend this part of the stipulation was procured through fraud. Its contention is that Singer would not have been able to deduct from his damages the amount of commissions he would have earned had Automotive received the orders from Husco. Without the interposition of the stipulation Singer would not have been able to receive a credit against the amount he is liable to Automotive. Bockemuhl v. Jordan (1955), 270 Wis. 14, 70 N. W. (2d) 26; Faultersack v. Clintonville Sales Corp. (1948), 253 Wis. 432, 34 N. W. (2d) 682. However, the parties were free to limit the amount of damages and in this case to allow a credit. We see no reason why this part of the stipulation is not binding upon the parties and should not be honored by the court.

        28

        Concurring with the learned trial court, we conclude that Singer's operations were in competition with his employer, Automotive, and from which he received undisclosed personal profits for which he must account. But the recovery by Automotive must be limited by Automotive's stipulation. Therefore, the judgment should be modified reducing the recovery allowed by the trial court, $64,088.08, by $10,183, resulting in a judgment for plaintiff of $53,905.08 and costs.

        29

        By the Court.—Judgment modified as stated in the opinion and, as so modified, affirmed.

        30
        WILKIE, J., took no part.
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