By the Court.
Hilton, J.If the sales made were not all to customers such as are denominated in the agreement between the parties, as “ first class,” the defendants should have established the fact by proof; not having done so, we must assume, as the referee did, that they were unable to furnish any favorable evidence on the subject.
The same view must be taken in respect to their claim for short measure in the goods consigned. If there was such a deficiency, the burden of proving the fact was upon them.
But I do not agree with the referee in his conclusion upon the facts found, that the plaintiffs are entitled to recover back the commissions which they have heretofore allowed and paid to the defendants v wn the sales made, and which have been actually earned under the agreement. I can find no precedent for such a recovery, nor am I able to perceive that it rests upon any established legal principle.
*193The rule undoubtedly is, that where a factor, agent or broker, misconducts himself in the business of his agency, so that his services have not, by reason of his misconduct, negligence, or fraud, been of any benefit to his principal, or have not proved as beneficial as they otherwise would but for his misconduct, he forfeits his right to compensation.
One of the earliest cases upon the subject is White v. Lady Lincoln, 8 Vesey, 363, where it appeared that the agent kept his accounts so loosely that the principal was unable to ascertain what amount of moneys belonging to him had actually been collected and received by his agent. Lord Chancellor Eldon then said, that the Court must, for the safety of mankind, lay down a rule not to be departed from only upon very special circumstances, that a man standing in the relation of agent, is bound to keep regular accounts of his transactions on behalf of his employer, not only of his payments, as in that case was done, but of his receipts; and unless he did so, he should not he permitted to make a demand for his services in that relation.
This rule not only commends itself, hut has frequently bean adverted to and applied, so that it is now settled that an agent must not only discharge all the duties of his employment with proper skill and fidelity, but in addition, must keep accounts of his transactions, and of all receipts and payments relating to the business entrusted to him (Farnsworth v. Gerrard ; 3 Camp. 38; Sea v. Carpenter, 16 Ohio, 413 ; Montrion v. Jefferys, 1 Car. & Payne, 113 ; White v. Chapman, 1 Starkie, 133 ; Lady Ormond v. Hutchinson, 33 Vesey, 53 ; Dodge v. Tileston, 12 Pick. 338); and his neglect in this respect, whereby his principal sustains injury, will deprive him of any claim for commissions or compensation. Chitty on Contracts, 548 ; Paley on Agency, 105; 1 Parsons on Contracts, 84.
But in the present case, upon the facts found by the referee, neither of those rules can be invoked in support of the judgment appealed from. It is not claimed that the defendants did not keep accurate accounts; indeed, on the contrary, the recovery here is based upon the entries in their books, by which it appears that the sales actually made by them of the carpets consigned, were ■ at higher' rates -than they were returned at in their accounts rendered to the plaintiffs; and to' *194the extent .of this difference the plaintiffs are clearly entitled to judgment as for moneys belonging to them in the hands of the defendants. But they cannot go farther, and recover hack as a penalty for rendering those deceptive accounts the commisions which they have heretofore paid and allowed the defendants, for the services they have performed in and about their business.
The judgment should, for these reasons, be reversed, as to the one thousand three hundred and twenty-five dollars and thirty-eight cents, being the amount of the commissions, with interest, and affirmed for the residue, without costs of this appeal to either party.
Ordered accordingly.