Citations for Sunderland.

ants for various sums, namely, the sum of $5319.55 for profit unjustly and illegally detained by the defendants from the complainants, arising out of the purchase of square No. 155, and also for the sum of $3316 in respect to profit made by defendants in the purchase of lot 17 in square No. 158; also for $8263.33 for overcharge made by defendants for care and management of complainants' property; and in favor of complainant Thomas Sunderland, individually, in pursuance of the stipulation of the parties filed in the cause against all of the defendants, for the sum of $5973.33 for overcharges for care and management of property belonging to Sunderland; and also, in pursuance of said stipulation, in favor of Sunderland individually against Latta individually, for $1672.85, being for overcharges for care and management; and also, in pursuance of said stipulation, in favor of complainants against Latta individually, for $2838.92 for overcharge made by Latta for care and management of their property, and for $1235.79, money retained by Latta from complainants' moneys in his hands.

For the opinion of the court, which was pronounced July 5, 1884, see Sunderland v. Kilbourn, 3 Mackey, 506.

Subsequently, upon petition for rehearing, the first decree was vacated and a second rendered January 22, 1885, awarding to complainants against defendants the sum of $3316; and also the sum of $8000 for excessive charges for care and management; and also in favor of complainants and against Latta individually of $2500. From this decree an appeal was taken by the defendants jointly and by Latta individually, which is No. 188, and appeals by the complainants jointly and by Sunderland individually, which are Nos. 261 and 262.

Mr. M. F. Morris, for Sunderland, cited: Smith v. Woolfolk, 115 U. S. 143; Vallejo v. Green, 16 California, 160; Nuckolls v. Irwin, 2 Nebraska, 60; Lane v. Wheless, 46 Mississippi, 666; Hettrick v. Wilson, 12 Ohio St. 136; S. C. 80 Am. Dec. 337; Wylie v. Coxe, 15 How. 415; Boyce v. Grundy, 3 Pet. 210; Harrison v. Rowan, 4 Wash. C. C. 202; Gelpcke v. Dubuque, 1 Wall. 220; United States v. Hodson, 10 Wall. 395; Planters' Bank v. Union Bank, 16 Wall. 483; McBlair

Argument for Kilbourn.

v. Gibbes, 17 How. 232; Armstrong v. Toler, 11 Wheat. 258; Patterson v. De la Ronde, 8 Wall. 292.

Mr. Enoch Totten, and Mr. J. M. Wilson, for Kilbourn, Olmstead and Latta.

There is

I. There is no jurisdiction in equity in this cause. a plain, adequate and complete remedy at law. The prayers of the bill and amended bill are alike; they pray that the defendants "may account fully to the complainants of and concerning their said trusts," and that they may "be required by the decree of the court to pay" the several sums of money which are precisely set out in their pleadings. The widest scope which can be given to their prayers is that they amount to a prayer for a money decree or judgment for the several sums which have been so accurately ascertained. The authorities on this subject are numerous in this court; it is deemed unnecessary to cite authorities from other courts. Buzard v. Houston, 119 U. S. 347; Hayward v. Andrews, 106 U. S. 672; New York Guarantee Co. v. Memphis Water Co., 107 U. S. 205; Sullivan v. Portland and Kennebec Railroad, 94 U. S. 806; Litchfield v. Ballou, 114 U. S. 190; Killian v. Ebbinghaus, 110 U. S. 568.

II. There never was any such special agreement as that set forth in the bill and amendments thereto.

III. The alleged agreement as set out in the pleadings and as described in the proof is void.

Such a contract is void because inconsistent with public policy. The two judges who entered the decree appealed from agreed that this alleged contract was void, but notwithstanding this they held, in effect, the agreement would be exe

cuted by a court of equity. This was error. A double agent

of a real estate agent or broker involves inconsistent duties, and it is clear, upon both principle and authority, that in case of such double employment, the contract is void. It has been doubted whether such double agency, made even with the consent of both buyer and seller, can be upheld on the ground of public policy. See Meyer v. Hanchett, 43 Wisconsin, 246;

Argument for Kilbourn.

Raisin v. Clark, 41 Maryland, 158. That such agencies are void when the employment is concealed from one of the principals, there can be no doubt. Ringo v. Binns, 10 Pet. 269; Rupp v. Sampson, 16 Gray, 398; S. C. 77 Am. Dec. 416; Stewart v. Mather, 32 Wisconsin, 344, 355; Meyer v. Hanchett, 39 Wisconsin, 419; Farnsworth v. Hemmer, 1 Allen, 494; S. C. 79 Am. Dec. 756; Walker v. Osgood, 98 Mass. 348; S. C. 93 Am. Dec. 168; Bollman v. Loomis, 41 Connecticut, 581; Everhart v. Searle, 71 Penn. St. 256; Lloyd v. Colston, 5 Bush, 587; Shirland v. Monitor Iron Works, 41 Wisconsin, 162; Marye v. Strouse, 6 Sawyer, 204; Michaud v. Girod, 4 How. 503; Conkey v. Bond, 34 Barb. 276; Bell v. McConnell, 37 Ohio St. 396; Jacksonville, St. Louis &c. Railroad v. Mathers, 71 Illinois, 592.

IV. The claim is stale and will not be entertained or enforced by a court of equity, because (1) the defendants have had mutual settlements, have transferred property, and their positions were changed during the long silence on the part of the plaintiffs; (2) the defence of the statute of limitations of three years has been interposed by the defendants. To avoid these defences the complainants say they did not discover the alleged fraud till recently when they examined the deeds. But these deeds were recorded, and they were bound by the knowledge which the record disclosed. Brant v. Virginia Coal Co., 93 U. S. 326; Sullivan v. Portland and Kennebec Railway, 94 U. S. 806.

V. The accounts showing the disputed charges and the balance of $2715.58 due the complainants having been received soon after the 26th of November, 1877, by the plaintiffs, and having been retained by them without objections until in June or July, 1878, should be held as conclusive. Between merchants at home an account which has been presented, and no objection made thereto after the lapse of several posts, is treated, under ordinary circumstances, as being by acquiescence a stated account. Wiggins v. Burkham, 10 Wall. 129; Chappedelaine v. Decheneaux, 4 Cranch, 306; Freeland v. Heron, 7 Cranch, 147; Lockwood v. Thorne, 11 N. Y. 170; S. C. 62 Am. Dec. 81; Richmond M'f'g Co. v. Starks, 4 Mason, 296; Leather Manufacturers' Bank v. Morgan, 117 U. S. 96.

Opinion of the Court.

VI. The plaintiffs are estopped by accepting and acquiescing in the statement of the accounts and by receiving and by receipting in full for the balance shown thereby $2715.58.

After this "account stated" had been prepared, and, on the 26th of November, 1877, forwarded to the complainants, and by them retained, without objection, for nearly a year, they, on the 10th day of September, 1878, received the balance shown to be due them by that "account stated" to wit, $2715.58, in full discharge and release of the defendants, Kilbourn and Olmstead. This concludes them. See Vedder v. Vedder, 1 Denio, 260; United States v. Child, 12 Wall. 232.

VII. Stewart was a partner during all the time the purchases complained of were progressing, and he is interested in proportion to his share in the speculation. His sale of the property did not carry with it the claim based on the misconduct of the defendant: if any there was, such a claim cannot be assigned.

The objection of want of parties is taken in the pleadings. The absence of a necessary party is fatal, and the bill must be dismissed. See Alexander v. Horner, 1 McCrary, 634; Robertson v. Carson, 19 Wall. 94.

Mr. J. H. Rallston for Hillyer.

MR. CHIEF JUSTICE FULLER delivered the opinion of the

court.

It is argued on behalf of Kilbourn, Latta and Olmstead that Stewart was an indispensable party to the cause, and that the bill should have been dismissed because he was not made such. Title to the real estate purchased by Sunderland, Hillyer and Stewart was placed in Latta in trust as matter of convenience, and it appears that in December, 1872, Stewart sold all his interest to Sunderland, evidencing the transaction by a memorandum in writing, in form of a bill of sale, which is not produced, but the fact is admitted by stipulation, and that he subsequently executed a more formal assignment, which is given in the record. Stewart testifies that Sunderland “was,

VOL. CXXX-33

Opinion of the Court.

with the knowledge and consent of the firm of Kilbourn & Latta, substituted in my place, and from that day I ceased to have any interest whatever in the transactions or business." On the 1st of November, 1883, the appearance of Stewart was entered by counsel, with a disclaimer "of all right and cause of action on his part against the defendants, or any of them, on account of any of the matters set forth or involved in this cause." Under these circumstances we regard this objection as untenable.

The point is also pressed that the remedy at law was plain, adequate and complete, and jurisdiction in equity therefore wanting. We do not understand counsel to repudiate the stipulation, or to suggest multifariousness or any objection arising upon the rather unusual mode pursued to secure a conclusion in four cases rolled into one, but to contend that the determination of all the matters in issue belongs on the law side of the court. The defendants fully answered the bill, and raised no such objection, and, the cause being at issue, and evidence taken, it was ordered on the 23d of February, 1883, by consent, to be heard by the general term in the first instance. On the 24th of March, 1884, the defendant moved to dismiss on the ground of the adequacy of the remedy at law.

We have had occasion recently to remark that where it is competent for the court to grant the relief sought, and it has jurisdiction of the subject matter, this objection should be taken at the earliest opportunity and before the defendants enter upon a full defence. Reynes v. Dumont, ante, 354. By stipulation several suits had in effect been consolidated with the intention, by consent, of adjusting the conflicting claims between Sunderland and Hillyer jointly and Sunderland alone, and Kilbourn, Latta, and Olmstead and Latta alone, and the parties had proceeded in their pleadings upon that theory, and taken all the evidence, and had the cause set down for hearing. It is then suggested that Sunderland and Hillyer and Sunderland cannot maintain their suit in equity, but must be remitted to actions at law. We do not agree with this view.

The jurisdiction in equity attaches unless the legal remedy, both in respect to the final relief and the mode of obtaining it,