The question of fraud in fact, was disposed of by the judge at the circuit, and his conclusions, sustained as they are by the evidence, final. The circumstances mainly relied upon by the plaintiff, to wit, that the stock transferred was the property of the defendant, aqd was not a purchase by him from a third person for the plaintiff, as the latter supposed, would have been an important item, in the evidence to establish actual fraud, had there been any evidence of fraudulent intent, or any circumstances upon *289whiph to charge the defendant with fraudulent representations or a fraudulent concealment of the true condition of the stock company. As evidence tending, as is claimed, with the other evidence in behalf of the plaintiff, to impeach the fairness of the transaction, it was urged by the judge at the trial, and clear effect given to it. As explained by the testimony, and in connection with all the circumstances and the other evidence in the case, it does not show fraud on the part of the defendant.
The only ground upon which the plaintiff can hope to succeed, is that which was mainly taken by his counsel upon the argument, to wit, that the defendant, in acting for the plaintiff in the transaction, could not at the same time act for himself, as that would be to act as buyer and seller of the stock; that having as buyer represented the plaintiff, and as seller acted for himself, the sale is void. The law of agency is well settled, and the principles contended for are well established and elementary. But to make them applicable, an agency must be shown. It must appear that the defendant was employed, with or without compensation, to do some act for the plaintiff in which a trust or confidence was reposed in him and in his discretion, and in the performance ,of which his judgment was called into action, and his duty to the plaintiff was inconsistent with his own interest, as the other party to the transaction. The negotiation was concerning the purchase by the plaintiff of ten shares of the capital stock, one share in which was worth as much as any other share. The price was agreed upon by the plaintiff, upon being told by the defendant the price at which the ten shares could be bought. It chanced that the stock which the defendant supposed could be bought by the plaintiff was sold by the holder before the receipt of the letter of the plaintiff directing the purchase; so that there was no alternative on the part of the defendant except to transfer ten shares of his own stock or disappoint the plaintiff, and he chose the former. On the 31st of January, 1857, the defendant wrote *290to the plaintiff that he knew where he could get ten shares at $150 per share, and asks, “ would you like it ? let me know ;” and says, after declining to advise him, “ should you conclude to take it, however, I will get and send you a certificate of same and you can then place me in funds.” The plaintiff, in reply, says, in substance, that he thinks it must be a good investment and that he, would risk the amount, and adds, “ you may therefore obtain the certificate and I will put you in funds on the receipt.” The plaintiff’ made his own com tract, acting upon his own judgment, reposing no confidence in the defendant, save in the honesty of his representations; and all that the defendant had to do for the plaintiff was to procure the certificate for the plaintiff; and whether the certificate represented stock once owned by the defendant, is not material. The plaintiff had of the defendant all the services for which he contracted. If A. buys a horse and there is no fraud or deceit as to his qualities and value, it cannot invalidate the contract of sale that the buyer supposes that the seller is acting as an agent when he in fact is selling his own property. If the defendant, when called upon by the plaintiff, had represented the stock to belong to a third person, and had expressly sold it to him as such, it would not have vitiated the sale. The prior ownership did not affect the value of the stock, and the price was agreed upon by the plaintiff and by the defendant or his agent. In Gillette v. Peppercorne, (3 Beav. 78,) there was an actual agency, and the real seller of the stock fixed the price as the agent of the purchaser, and that case was very clearly distinguishable from this.
[Onondaga General Term, October 1, 1861.The judgment should be affirmed.
Judgment reversed, and new trial granted.
Bacon, Allen, Mullin and Morgan, Justices.]