| N.H. | Mar 22, 1876
Lead Opinion
FROM MERRIMACK CIRCUIT COURT. The ground upon which it is contended that the defendant ought not to be deprived of the fruits of Hutchinson's fraud (which he holds in the shape of the notes given by the plaintiff upon the purchase of the land) is, that Hutchinson was not acting as his agent in that *413 transaction. In other words, it is claimed he should be permitted to ratify and adopt all that part of Hutchinson's conduct which is beneficial to himself, and disaffirm and repudiate the rest, and so escape the consequences of a fraud so gross and criminal. Fortunately, the justice of this case is the law of it. I take it to be clear law that the defendant cannot affirm the trade made on his behalf by Hutchinson, and so treat him as his agent in the matter to that extent, without, at the same time, adopting the ill-omened means whereby it was brought about. He takes it cum onere, and, unless he can sustain it as a whole, he must be content to see it fall as a whole, and his gains, of course, go with it. Mackay v. Commercial Bank of New Brunswick, L. R., 5 P. C. 394; Hern v. Nichols, 1 Salk. 289; Alexander v. Gibson, 2 Camp. 555; Cornfoot v. Fowke, 6 M. W. 373; Moens v. Heyworth, 10 M. W. 157; Wilson v. Fuller, 3 Q. B. 77; Udell v. Atherton, 7 H. N. 172.
It is to be regretted that the defendant was cheated and swindled by McIntyre and Haines when he exchanged his Millville property for the fictitious land in Wentworth. It is always matter of regret when honest men become the victims of rogues and knaves: but that fact is not of the slightest consequence except as it may have had a bearing at the trial upon the question of the defendant's participation in the fraud practised upon the plaintiff by Hutchinson. I assume, however, that the defendant was entirely innocent of any actual participation in that fraud; and, upon that assumption, I am entirely clear he cannot be permitted to retain its fruits. I think the holding of the referee on this point was right, for the reason given in the report.
The referee finds, in effect, that the tender of the deed was made within a reasonable time after the fraud was discovered. I see no error, either of law or fact, in that finding, and I am of opinion that the plaintiff is entitled to a decree.
Concurrence Opinion
On the facts reported by the referee, I should myself have been inclined to find that the defendant impliedly assented to Hutchinson's acting as his agent, and that therefore Hutchinson was his agent; and if he assented to Hutchinson's acting for him, he to that extent held him out as his agent. The referee, however, has drawn a somewhat different conclusion, but reached the same result; and I am not disposed to disturb it.
I think there should be judgment according to the report.
Concurrence Opinion
It is clear that the defendant cannot appropriate to himself the fruits of Hutchinson's fraudulent acts, without becoming responsible for his conduct. Admitting that Hutchinson was not his agent in fact, yet, by ratifying his acts, Hutchinson became in law his agent, and consequently he is bound by his representations. Story on Agency, secs. 442-454; Hatch v. Taylor,
The referee also finds that the plaintiff would not have consummated the trade if the defendant had not suppressed information as to *414 the quantity of the land both parties supposed was being conveyed. This fact is enough to entitle the plaintiff to rescind the contract.
Again: admitting that no fraud had been practised, the plaintiff thought he was buying and the defendant thought he was selling a tract of land one half mile from the depot in Wentworth, heavily wooded and timbered, worth $12 per acre; whereas, in fact, the tract was four to five miles distant, contained but eighty acres, was sparsely wooded, and was worth only $1.25 per acre. This was such a glaring mistake, that the grantee would be entitled to relief in equity upon restoring the plaintiff to his original position; and the tender of the deed to the defendant at the hearing must be held to be in season, under the decisions this state. Concord Bank v. Gregg,
Decree according to the prayer of the bill.