Morehouse v. Northrop

Carpenter, J. The plaintiffs had their election to bring their action in assumpsit or tort. They chose the latter. The declaration contains two counts ; the first is for a false warranty, the second is for a false warranty and also for a fraud in the sale of the hogs. Whether this count would have stood the test of a special demurrer, it is not now necessary to enquire. It is in form and substance a count for fraud, and with the exception of the word warranting, is in the usual form. We think it was so intended by the pleader, and as such was propei-ly joined with a count for false warranty. Humiston v. Smith, 22 Conn., 19. The other questions arising upon the record will be considered in their order. 1. The defendants objected to the evidence offered to prove the declaration of Northrop, made during the negotiations which resulted in the sale, that the hogs in question “ were raised just across the Hudson river in the counties next hack of Neioburgh ” in the state of New York. The view we have taken of the nature of this action relieves this question of all difficulty. Under the second count the plaintiffs must not only prove the false representations, but must also prove that the defendant Northrop knew them to be false. This evidence was offered as tending to prove the [387] scienter, and as affecting the question of damages. Eor this purpose we think the evidence was properly admitted. If it be notoriously true, as the plaintiffs claimed, that hogs raised in that locality were much more likely to be sound and free from disease than those transported from the west, the motive of Northrop -in making the declaration is apparent. He could have had no other object, assuming the declaration to be untrue,. then to mislead and deceive the plaintiffs in respect to the soundness of the hogs. He had declared them to be sound and free from disease; and then to allay all suspicion and induce the plaintiffs to believe this representation, he adds that they were raised just back of New-burgh. It was an artifice well calculated to deceive the plaintiffs, and from it, in connection with the other proof, the jury might well infer that they were deceived, and that it was done willfully. 2. The note described in the second count, and the evidence that it was delivered to the defendants in payment, received and negotiated by them, and paid by the plaintiffs when due, were -objected to as inadmissible; but the court overruled the objection. The ground of the objection was that there was no allegation that the note had been paid, and because it was a variance from the allegations in the declaration. The latter objection is not insisted on. The note is correctly described, and it is alleged that the hogs were to be paid for by the note, and that it was delivered to the defendants at the time of sale. These allegations are pertinent to the plaintiffs’ case and may be proved whether the declaration is sufficient or otherwise. Adams v. Way, 32 Conn., 160. The insufficiency of the declaration cannot be taken advantage of by way of objection to evidence offered in support of the averments in the declaration. Thus far then the evidence offered was admissible ; and if the rest were inadmissible we should refuse to grant a new trial, for the reason that the defendants do not discriminate between admissible and inadmissible testimony and confine their objection to the latter. Reg. Gen., 18 Conn., 574; Fitch v. Woodruff & Beach Iron Works, 29 Conn., 82; State v. Alford, 31 Conn., 40. [388] But we are of the opinion that all the evidence was strictly admissible. The first count alleges payment without specifying how it was made. This allegation may be proved, either by proof of payment in money, or of payment in some other thing which the defendants received and accepted as money; such as bank checks, bills of exchange', promissory notes or the like. All the evidence objected to tended to prove this averment, and from this evidence alone the jury would have been justified in finding it true. In respect to the second count, it was unnecessary for the plaintiffs to aver or prove the negotiation or payment of the note in order to maintain their action. The consideration of the contract was the note, and when that was delivered the contract was complete, and the plaintiffs had a right of action immediately. They were not bound to wait for the note to mature, but might sue at once, and while the note was in the defendants’ hands. This part of the evidence therefore was not essential to the plaintiffs’ right of recovery. But we are of the opinion that it was admissible nevertheless. It proved the value of the consideration, and that it was not a mere technical one. That fact might well be considered by the jury in estimating the damages. 3. The last objection respects the charge of the court to the jury. The defendants were joint owners of the property in question. They made an arrangement by which Northrop’ took it into his keeping, and under his control and management, for the purpose of effecting a sale thereof, for the equal and joint profit and benefit of the owners. Northrop in the absence of Stillson sold the hogs at a profit which was equally divided between them. The case does not show that Still-son, after the circumstances of the warranty and fraud came to his knowledge, ever repudiated the contract, or offered to restore any part of the consideration; but on the contrary he still insists upon retaining his portion of the profits. Under these circumstances the jury were told, in substance, that if, in the contract of sale, there was a false warranty or fraud, whereby the plaintiffs had sustained damage, both defendants were liable. We see no objection to this charge. [389] * Northrop was expressly authorized to sell. In doing so, as the jury must have found, he falsely warranted the property sold, or was guilty of fraud. Stillson by his subsequent conduct ratified the contract, not in part but in loto, including the warranty and deceit. He was therefore a party to the contract. He shared in the profits, and must not now complain that he is required to share in the responsibility. By the ratification of the acts of an agent, in tort as well as in contract, a liability is incurred by the principal. Parsons on Contracts, 51, 52, and cases there cited. If the defendants are to be regarded as partners in this transaction their liability will be the same. That all the members of a firm are answerable for a false warranty made by one of the members, in a sale of partnership property, within the scope of his authority, is too clear for argument. They are equally liable for a fraud under the same circumstances, especially where they .share in the profits. Locke v. Stearns, 1 Met., 560. We do not advise a new trial. In this opinion the other judges concurred.