46 Barb. 139 | N.Y. Sup. Ct. | 1866
The- plaintiff was nonsuited at the circuit upon the opening of his case hy his counsel. The opening, as the case shows, corresponded with the complaint ; the plaintiff’s counsel stating substantially the facts as therein alleged. The question presented, therefore, is whether a good and subsisting cause of action is therein stated against the defendant. This question would have been more properly presented by a demurrer to the complaint, on the ground that upon the facts stated in the complaint no action could be maintained against the defendant.
The defendant had the right, however, if he did not choose to risk his defense upon a demurrer) to put in his answer, and raise the question in this manner at the trial. The action is for a fraud practiced by the defendant, while acting as the agent of one Overrocker, in the sale of a quantity of barley to the plaintiff, representing it to be fit and proper for seed barley. The complaint, upon the facts therein stated, makes out a very clear and gross case of fraud against the defendant. That an action for a deliberate and intentional fraud practiced by a person in making a sale, may be maintained against him personally even though he is acting as the agent of another in making the sale can not,' I suppose, be doubted. lío authority can be needed in support of so plain and reasonable a proposition. The action does not in such a case proceed upon the contract, but upon the tort. And in torts there is no such legal relation as principal and agent. Every person guilty of a tort, to the injury of another, is liable in an action, even though another is also liable for' the same injury, lío question, however, I suppose, would
For aught I can see, that is this case. It seems to be assumed, by the defendant’s counsel in his points, that upon the trial of the'former action in the county court, the fact was established, by the evidence, that in making the sale, the defendant, as agent, did warrant the barley as good seed barley, not only without authority, but against express instructions not to do so, from his principal. And it is urged that the defendant, in that action, upon that state of facts, was clearly liable and the plaintiff ought to have had judgment,
It does not aid the defendant’s case at all, if it be conceded that the principal might be made liable for the fraud of the defendant, as his agent; because, as has been already suggested, several may be liable for a tort, and it is no defense to one, that another is also liable. . The question of fraud has not yet been tried against the principal, and it is no bar to this action that he might have been prosecuted. In any aspect of the case, there is not enough stated in the complaint to make the principal liable for 'the fraud of the defendant, as agent. It is not stated that tfte principal had in any way ratified the sale, and taken the benefits of it, either by accepting and retaining the money, or otherwise, nothing appears upon that subject whatever, and there is no presumption in the defendant’s favor, on that question, as the case now stands,
Upon the case as it appears here, the plaintiff was non-suited upon the opening of his counsel, merely because it was stated that he had before brought an action against the defendant’s principal, for a breach of warranty in the sale of the barley, and had been defeated in the action. That was clearly no ground for a nonsuit. Doubtless, facts were assumed there, which do not appear in the complaint or in the case.
There must, therefore, be a new trial, with costs to abide the event,
Welles, IE. Darwin Smith, and Johnson, Justices.]