Chester v. Dickerson

'By the Court, J. F. Barnard, J. This action was originally commenced against four parties. One, (De Wint,) died before the trial, and the issue was continued against the three present defendants, Dickerson, Jones, and Reed. The action was for a wrong, for damage occasioned by reason of the plaintiffs having been cheated and defrauded in the purchase of lands of the defendants. The fraudulent practice being charged to be the placing of petroleum oil by the defendants on the lands, thereby inducing the belief that the oil was the production of the lands. There are two leading principles to be kept in mind at the beginning of the examination of the points presented by the appeal. First, that the defendants committing a fraud like this are jointly and severally liable; evidence, therefore, which implicates one and not all is admissable, and, if sufficient, will justify a verdict against one alone. The second principle is that a person com-f mitting a wrong like this is liable to whomsoever suffers by the fraud; no matter whether there be any privity between the person perpetrating the fraud and the person receiving the damage by reason of it. Applying these \ principles to this ease it follows that Jones, who is proved ■ to have personally assisted in creating these fraudulent 359 appearances before Ms partnership with the other defendants was formed, is liable to the plaintiffs if they were deceived by the fraud, even if he passed the title to others and they sold to the plaintiffs. The evidence, then, that Jones did this thing in September, 1864, and shortly before the other defendants became interested in the lands, was admissible as to him. Between the 1st and 20th September, 1864, Reed appears upon the lands with Jones, he promises Higgs a dollar and a half a day, and §5000 “ if the thing worked as well as Jones thought it would,” and that he “ should have that amount of money if the land sold in a good condition, , which he and Jones thought it would.” This was at least some evidence against Reed, and was admissible as against him. The deceptive appearances were at short intervals created by Higgs, acting under direction of Jones, and perhaps Reed, until the 12th December, 1864, when the plaintiffs purchased the options of the defendants, that is the right to buy the lands on which these appearances had been created, for §39,000. Subsequently the plaintiffs did acquire the lands from the owners, taMng the last title early in April, 1865. Dickerson and perhaps Reed are to be charged upon another principle of law. The three defendants, survivors of the deceased De Wint, were partners in these' lands. The written agreement is dated 28th Uovember, 1864, and has been expressly adjudged by the court to be a partnership agreement with lan,ds for its subject. (Anthony v. Dickerson et al. unreported.) Jones testified on the trial that the agreement existed in parol as early as September, 1864; Reed was called as a witness an'd did not deny it; Dickerson was subsequently sworn as a witness, and did not deny it. He does say he had not personally seen Jones and De Wint until some time after the writing was in fact signed, but the agreement shows it was signed at different places, and with different witnesses, Reed and Dickerson signing in presence of one witness, and De Wint 360 and Jones signing before another witness. That it had existed before this in parol, hi either of the parties who could deny the fact did so. Surely under this state of the evidence it could safely be said that the parol agreement existed as early as September, 1864, and the charge of the judge, which left it to the jury to fix the time during which this agreement existed, in parol, if at all, before the writing, was not erroneous. The principle of law which is to charge Dickerson is, that he, one of the parties, is liable for the acts of his partner Jones, while the partnership existed, whereby these deceptive appearances were created, upon the subject of the partnership and whereby the partnership realized the proceeds of the fraud. And this principle is good as well while the agreement of partnership was in parol as while it was in writing. ■ (Sage v. Sherman, 2 Comst. 417. Smith v. Tarlton, 2 Barb. Ch. 336. Sweet v. Bradley, 24 Barb. 549. Hawkins v. Appleby, 2 Sandf. 421.) The remaining question in the ease is, the evidence admitted of the acts of Jones after the plaintiffs purchased of the defendants. A statement of the evidence will show this was not erroneous. The defendants sold on December 12, 1864, to the plaintiffs the options only, that is the defendants sold to the plaintiffs for $39,000 the right to buy these lands, which they then had, the plaintiffs having to pay for the lands to the owners. . The plaintiffs did not get the last of these lands until April, 1865. Could they not show that Jones continued to plant this oil up to the time they parted with the last dollar they did part with upon the-faith and credit of the false appearances ? Besides, there is no evidence when the plaintiffs did convey to this petroleum company. The company was formed, it is true, about the last of December, 1864, but the date of the conveyance to the company is nowhere given; in fact is not proved at all by any conveyance or writing; but a conveyance, if one was ever made, could not have been until after 361 the plaintiffs got a title themselves, which was not until after the date of the last act was proved by Higgs. The charge in reference to the time when the parol agreement existed was right. Jones had fixed the date in general terms. Eeed and Dickerson had not denied the time. Eeed testified that on the 20th September he had not become interested in the lands, but that Jones was trying to get him interested. Eeed testified, further, that on the 20th ¡November, he then having become interested and having obtained nearly all the options, he told Higgs “he would drive.” The court told the jury that they could fix the date of the parol agreement. That Jones’ testimony had fixed such an agreement in general terms, but that Eeed denied, substantially, the partnership before the 20th of September, and admitted it substantially on the 20th of ¡November. That the jury might take this testimony into consideration in fixing the time, and not that they could take into consideration Seed’s acts as making a partnership for Dickerson. No exception was made to this part of the charge by the very able counsel who conducted the trial for the defendants. I see no error upon which this judgment should be reversed. It should be affirmed, with costs.