63 N.W. 209 | N.D. | 1895
Fraudulent Representation of One Partner Binds the Other.
Every partner is liable for the fraudulent representations of every other partner made in the sale of partnership property as a means of effecting such sale.
Judges Statement in Excluding Evidence-Effect.
Where the trial court, by its ruling in excluding evidence, plainly asserts that the plaintiff cannot, as a matter of law, recover on the theory on which he is seeking to sustain his action, he is not bound, in the absence of notice that he must so do, to offer proof of the other allegations of his complaint. The other facts, for the purpose of reviewing the ruling of the trial court, are, under such circumstances, to be deemed capable of proof; and it is to be assumed that plaintiff could have proved them had he not been met with such adverse ruling, rendering further evidence meaningless and without force in the case.
Defendant was sued as surviving member of thefirm of Mellon Bros. for deceit in the sale of horses by such firm to plaintiff. On the trial, plaintiff sought to establish the allegations of the complaint as to fraudulent representations connected *73
with such sale by offering to prove that the member of the firm who was dead at the time of the trial had, in effecting the sale, made certain representations touching the soundness of the horses sold. The evidence was excluded by the trial court, plainly on the ground that one partner is not liable for the fraudulent representations of his copartner in effecting a sale of partnership property. This is not the law, and, on principle, it ought not to be the law. Although a few courts have taken a different view of the question, there is ample authority to support the rule which renders all the members of the firm liable for the tort of one of its members under such circumstances. I Bates, Partn. § 472; Chester v. Dickerson, 54 N.Y. I; Mechem, Ag. § 743; Wolfe v. Pugh,
But it is insisted that plaintiff failed to establish, or offer to establish, a case against defendant, even assuming that the evidence rejected had been received. But we do not think that, in the absence of notice from the court that he must so do, a party is bound to proceed to offer further evidence in the case when a ruling is made which renders it impossible for him to recover. The plaintiff, by the decision of the trial court, was notified that, no matter what he might prove, he could not make out a cause of action for deceit against defendant, unless he (defendant) could be personally connected with the wrong. It was waste of time for him to proceed further. Nay, the foundation for further proof was wanting. He could not prove that the representations were false, and were known to be false by the party making them, with no representations established in the case on which he could base a further inquiry. The true rule is stated in Loeb v. Willis,
The judgment of the District Court is reversed, and a new trial ordered. All concur.
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