Appellant denies that it was the custom of commission merchants in Chicago at this time to insure goods in their charge, although he admits making a charge for insurance, and in one of the letters to appellee stated that where goods are held in storage it is customary to charge insurance. However this may be, the fact appears that appellant did take out certain policies of insurance amounting in the aggregate to the sum of §15,500, and that the said policies covered by their terms all butter held by appellant, either on his own account or in trust or on commission, and that under this policy appellant made a claim for loss upon all the butter he had in storage, including that of appellee. Such being the case, xve think it quite immaterial whether it was the custom of commission merchants to insure goods of their principals, or whether there had ever been any agreement between appellant and appellee for insurance. Ñor do we think it material whether, as a matter of fact, the goods of appellee were actually damaged by the fire, on account of which appellant claimed and received payment of a loss, or whether the loss of appellant at said fire upon his own goods exceeded the total amount of insurance money received by him. The conduct of , appellant shows that beyond question he considered this insurance to be in part for the benefit of appellee. He made to him a charge for insurance premiums by him (appellant) paid, and the validity of such charge appellee finally conceded.
When the fire occurred, appellant might at once have notified appellee of it, and asked him to come on and look after his interests in that regard; but without doing this, appellant proceeded to make claim for the loss that had been sustained and to submit the question of the amount of such loss to arbitration. Such arbitration and an award having been made, under such submission appellant received the amount of the loss so found. In all this, appellant assumed to act and represent appellee, and he can not now be heard to complain if appellee insists upon having the benefit of his action. Indeed, it would seem that appellant under such circumstances ought to be quite content if appellee is willing to concede the right of appellant to submit his (appellee’s) claim for loss to arbitration, and to receive the amount found by the arbitrators appointed at the instance of appellant, without notice to him (appellee), especially as in the sworn statement made by appellant to the arbitrators, he appraises all of the butter before the loss at twenty cents per pound, and then, having received damages thereon only to the extent of three and one-fourth cents per pound, sold that butter for ten and one-half cents.
Hor do we think it material in this action, if it be the case, that a ppellant’s loss upon the butter by him owned was greater than the total amount of insurance money received by him. Appellant, at the time of the fire, might easily have notified appellee to come on and look out for his interests, informing him that he (appellant) would claim all the insurance money that might be received under the policies, but instead of doing this, he proceeded to act as before stated, without notice to appellee, and has thereby placed appellee in a position where it is now impossible for him to make claim against the insurance companies for the damage done to his (appellee’s) goods.
It is urged that there is no equity in the claim of appellee, because it is claimed that in reality, the butter of appellee was not damaged at all. We think that appellant is now estopped to make any such claim. Appellee never had, after the fire, any opportunity to examine liis butter, and determine for himself whether or no it had been damaged. That he did not have such opportunity was entirely owing to the action of appellant; and we think the well-established principles of the law governing the relations of principal and agent, forbid that appellant should at this time, and under these circumstances, be now allowed to say that the goods of appellee were not damaged at all.
It may be, that had appellant made a claim to the insurance companies for loss only upon butter by him (appellant) owned, that he would have received thereon as much, or more than he did obtain; but an agent can not be allowed to use, for his own profit only, in any manner, the goods of his principal. It is a well settled principle, that a person who undertakes to act for another, shall not in the same matter act for himself, in any way to the disadvantage of his principal, and that the profits and gains made by the agent in the execution of his trust belong to the principal; and it matters not whether such profit or advantage be the result of the performance of the duty intrusted to him, the obedience of orders to him given, or the violation thereof; whatever profit or advantage the agent makes out of the property of his principal, belongs to the principal. All experience shows that it is only by a rigid adherence to this rule, that temptation can be removed from one acting in a fiduciary capacity, to seek his own advantage to the injury of his principal. ¡Nor does it matter that the conduct of the agent may have been in the particular case perfeotly fair in intent, and that he may not have contemplated any injury to his principal, but only to do that which he assumed to be perfectly right and proper. The result is the same. If the agent, dealing legitimately with the subject-matter of his agency, acquires a profit, the principal may claim the advantage thus obtained, even though the agent may have contributed his own funds or responsibility in producing the result. All profits and every advantage beyond lawful compensation, made by an agent in the business, or by dealing or speculating with the goods of his principal, though in viplation of his duty as agent, and though the loss, if one had occurred, would have fallen on the agent, are for the benefit of the principal. The law will not permit an agent, without the assent of his principal, to acquire an interest in the subject-matter of the agency, adverse, or in opposition to that of his principal. Mechem on Agency, Sec. 469; Cottom v. Holliday, 59 Ill. 179; Dennis v. McCagg, 32 Ill. 429-444; Switzer v. Skiles, 3 Gilm. 529; Dutton v. Willner, 52 N.Y. 312-319; 9th Ed., Story on Agency, Secs. 192-207-208-210-212-214; Ewell’s Evans on Agency, Marg. paging, 243; Jude vene v. Hardwick, 49 N. E. 180.
It is insisted by the appellant that the butter was not only not injured, but was saved, and that its owner received the full benefit thereof. As before stated, we think this is a claim which appellant can not now be heard to make. Had he given appellee an opportunity he might have been able to show that the damage to his butter was much more than three and one-fourth cents per pound; that it in reality was nine and one-half cents per pound—the difference between what appellant, under oath, declared its value to be before the fire, and the price for which it sold after the fire.
It is insisted that the appellant should have been permitted to explain why he had not reported to appellee the collection of the insurance money. Appellant did not offer to show that he had neglected to give such information on account of anything done by appellee. What reasons existed in his own mind or what any one not connected with appellee may have done that induced him to withhold such information, was entirely immaterial. This action was based and this judgment rendered, not at all because he failed to communicate the fact that he had received such insurance money, but because, under circumstances before stated, he did receive it. And we think interest was properly chargeable against him from the time of its reception.
We think the evidence as to the quantity of butter owned by appellee, upon which appellant received damages of three and one-fourth cents, was such as to warrant the amount of the verdict of the jury.
It appears to us also that unless there was some urgent necessity for a sale of this butter immediately following the making of the award of loss thereon, it was the duty of appellant to have notified appellee of the fire and the probability that his butter had been damaged thereby, in order that he (appellee) might take such action as he thought proper, and that a sale of it without any notice to appellee of such extraordinary occurrence was not such a discharge of his duties as appellee had a right to expect and require. Ewell’s Evans on Agency, Marg. p. 213; Story on Agency, Sec. 208; Clark v. Bank of Wheeling, 17 Penn. St. 322.
Taking the instructions as a whole, the law of the case was fairly presented to the jury, and substantially, justice appears to have been done by the judgment.
It is claimed that there is a variance between the evidence and the declaration; also that the evidence does not sustain the declaration. The particular variance alluded to should have been pointed out upon the trial. If this had been done, it might have been removed by amendment. Such action not having been had, it is too late to now insist upon a variance, and the principles applicable after verdict to causes of action defectively stated, apply, Northwestern Brewing Co. v. Manion, 44 Ill. App. 424; City of Bloomington v. Tebballs, 17 Ill. App. 455; I. & St. L. R. R. Co. v. Estes, 96 Ill. 470; Driggers v. Bell, 94 Ill. 223; L. E. & W. R. R. Co. v. Rosenberg, 31 Ill. App. 47; Mackin v. O’Brien, 33 Ill. App. 474; Wight Fire Roofing Co. v. Poczekai, 130 Ill. 139.
The judgment of the Circuit Court is affirmed.
Judgment affirmed.
Mr. Justice Gary. I think the money received for insurance should be apportioned in the ratio of the actual damage to the insured goods.