¶1(charging the jury.) There are in this case two principal matters of dispute, which must be settled by you as the foundation of your verdict.
¶21. Had the defendant any authority to foreclose the mortgages, which have been offered in evidence?
¶3If you find that he had not, then he has wrongfully possessed himself of the plaintiffs’ property, and is liable to them for the value of the machines.
¶42. If you find that he had authority to foreclose these mortgages, you will next inquire whether he was authorized by an express agreement to buy in for himself the property which he was thus authorized to sell.
¶5If you find that he was authorized by the plaintiffs to act at the sales both as seller for them, and buyer for himself, then he is liable to the plaintiffs for the amounts bid by him, subject to a deduction of all sums paid on such bids, and the necessary costs and expenses of foreclosure paid by him. He is not entitled to compensation for personal services.
¶6If you find that he was authorized to foreclose the mortgages, but was not authorized to bid in the property for himself, then the purchases must be considered as made for the benefit of the plaintiffs. The defendant must be treated as their agent in making the purchases, and in afterwards selling them again. As he has refused, on demand, to account as agent, or to pay to the plaintiffs the money and notes which he received from sales of the machines, he is liable to the plaintiffs for the amount for which they were sold. But if he is held as agent, he is entitled to the sums which he has paid on his bids, a reasonable compensation for his services in foreclosing and re-selling, and the expenses incident to both these sales. These sums should be deducted from the sums realized by him from the sales to third parties.
¶7The verdict of the jury was founded on the latter hypothesis. Judgment for the plaintiffs.