(dissenting). My dissent goes only to the second part of the majority opinion which deals with Bew’s fiduciary relation as an agent of his employers.
The majority correctly state the issue “involves a question of fact.” I cannot agree, however, with the majority that the chancellor’s decision is contrary to the weight of the evidence. In this connection it is not necessary to cite cases sustaining the well established rule that in close questions of fact we do not disturb the findings of the chancellor. The rule is based on common sense and the obvious fact that the chancellor, who sees the witness, can judge his sincerity better than we who only see the printed words.
Apparently the majority rely heavily on the fact that Pear admitted he told Bew that if his report was correct Pear and his associates did not want to buy the laundry. The record reveals, however, that Bew gave Pear no time to see “if his report was correct” before he started negotiations in his own behalf. Bew is bound to have known he was obligated to people other than Pear, but he did not even take the pains to report to them. Consider also the following:
(a) Pear (at page 211 of the record) testified:
“He [Bew] also stated to me with the exception of a new boiler he did not have a piece of equipment in his plant I would have.. I did say ‘Jack, if we look into it and find everything you say is right and not worth looking into, we would not want it ’. ”
(b) Guy Raby, President of the Memphis Steam Laundry, who, with Pear, instructed Bew to look over the Lasker businesses, testified (page 160-161 of the record) that Bew reported Lasker wanted a package deal.
“Q. Was that report that he gave you and Mr. Pear, was it favorable or unfavorable?
“A. Well at that time it did not sound too favorable.
‘ ‘ Q. What did you tell Mr. Bew at that time, to quit, cut off the negotiations?
“A. No we did not tell Mr. Bew that we were not interested because neither Mr. Pear or I were in position to give him such instructions. We had not had an opportunity to take it up with the Executive Committee or other officers of the corporations. So far as we knew negotiations were still in effect.”
(c) Mr. Pear (page 210 of the record) stated he did not tell Bew the deal was off, and (on page 212 of the record) he said, “No, I did not break off negotiations. ”
It appears to me that the majority, in concluding the chancellor found against the weight of the evidence, failed to recognize the source of the testimony relied on to show “the deal was dead” when Bew started negotiations to buy from Lasker. It should be kept in mind that Lasker and his attorney only knew what Bew chose to tell them, and also that Glazer, who was Lasker’s oivn agent, did not see fit to take the stand. Thus, we have Bew extricating himself from a tricky situation by his own “bootstraps.”
As I read the record Bew fabricated a series of incidents and relied on them in an effort to escape the fiduciary duty imposed on him by law which is clearly and uniformly announced in many of our own decisions.
In Raines v. Toney, 228 Ark. 1170, 313 S. W. 2d 802, it was said:
“The law imposes a high standard of conduct upon an officer or director of a corporation, predicated upon the fact that he has voluntarily accepted a position of trust and has assumed the control of property of others. ’ ’
In Yahraus v. Continental Oil Co., 218 Ark. 872, 239 S. W. 2d 594, the Court had this to say (quoting from 2 Am. Jur. Agency § 252, pp. 203-204):
“ ‘It is well settled that an agent is a fiduciary with respect to the matters within the scope of his agency. The very relation implies that the principal has reposed some trust or confidence in the agent. Therefore, the agent or employee is bound to the exercise of the utmost good faith and loyalty toward his principal or employer. He is duty bound not to act adversely to the interest of his employer by serving or acquiring any private interest of his own in antagonism or opposition thereto. His duty is to act solely for the benefit of the principal in all matters connected with his agency. This is a rule of common sense and honesty as well as of law.’ ”
In Collins v. Heitman, 225 Ark. 666, 284 S. W. 2d 628, we find:
“We have often stated that an agent, regardless of how innocent his intentions may be, cannot place himself in a situation where personal interests conflict with the duties owed his principal. ’ ’
In McHaney v. McHaney, 209 Ark. 337, 190 S. W. 2d 450, there appears this statement (from Walthour v. Pratt, 173 Ark. 617, 292 S. W. 1017) :
“ ‘Everyone, whether designated agent, trustee, servant or what not, who is under contract or other legal obligation to represent or act for another in any particular business or line of business, or for any valuable purpose, must be loyal and faithful to the interest of such other in respect to such business or purpose. He cannot lawfully serve or acquire any private interest of his own in opposition to it.’ ”
See also to the same effect Dudney v. Wilson, 180 Ark. 416, 21 S. W. 2d 615, and Walthour v. Pratt, supra.
I would, therefore, affirm the trial judge on the point discussed.