Salem India Rubber Co. v. Adams

40 Mass. 256 | Mass. | 1839

Shaw C. J.

afterward drew up the opinion of the Court. This was an action of trespass on the case, charging the defendants with deceit in the sale of India rubber shoes. The verdict being for the defendants, several exceptions have been taken, in behalf of the plaintiffs, who now move for a new trial.

1. The first objection was to the testimony of Rogers ; in which he stated that he had examined the same lot of shoes, about the same time, at the same place and under the same circumstances, and that the defendants offered him every facility for a full and fair examination. It was objected to, on the ground, that this was an examination which took place in the absence of the plaintiffs, and led to no conclusion that the plaintiffs had the means of making a similar examination. But it must be considered, that this was in answer to evidence on the part of the plaintiffs, offered to show, that the boxes were piled in an inconvenient place, and apparently so arranged as to prevent a fair and full examination. It was also shown by other evidence, that the boxes were in the same condition, when the plaintiffs examined, as when Rogers 'examined them. In this view of the ca ¡e, we think the evidence was competent.

2. The next exception is, that the acts and declarations of Winn were admitted as evidence. Winn was one of the members of the plaintiff corporation, consisting of four persons only. As a member of the corporation only, his declarations would not be competent. And regarding him as an agent, his declarations and admissions, made after his agency had ceased, in regard to past transactions, would not be competent. But his acts and declarations, as an agent, made during his agency, and in the conduct and management of it, are res gestee, and are binding upon the principal, being in legal effect his own acts. A corporation can in general act only by its authorized agents. We think that there was satisfactory evidence in the case, that Winn acted as one of the agents of the company, that his acts as such were recognized by them, and therefore that his declarations, attending the negotiation and contract of sale between the parties, were properly admitted in evidence.

3. The next exception was, that the Court instructed the jury, that if the plaintiff had the full means of detecting the fraud, if any fraudulent representations were made, and of ascei taining the truth for themselves, by an inspection of the shoes, they could not maintain this action. This instruction, as applied to the subject matter, we think was correct. The case of the plaintiffs, went on the ground of false representation by the defendants, and loss and damage occasioned thereby to the plaintiffs. The gist of the action is, that the plaintiffs were imposed upon and deceived by the fraud of the defendants. Pickering v. Dowson, 4 Taunt. 779. If the plaintiff has full means of examining for himself, he cannot aver that he was imposed upon by the false representation. Where there is an express warranty, indeed, on the part of the defendant, embodied in, and made part of the contract of sale, and this warranty is false, case will lie, on the ground that by means of the warranty the buyer is lulled into security and prevented from making any examination. Williamson v. Allison, 2 East, 446. But here was no competent evidence of express warranty, covering the principal subjects of the plaintiffs’ complaint. There was a preliminary agreement in writing, and subsequently a bill of sale executed, and no warranty expressed in either, as to the quality of the shoes. This was competent evidence bearing upon the point of fraudulent misrepresen tation. but it proved no express warranty of the quality of the shoes.

As to the charge, that a failure in this action would be no-bar to an action on contract, we think this was put merely by way of illustration and must be taken in reference to the subject matter. If there had been an express warranty embodied in the contract, and the plaintiffs had declared in case according to the old forms, relying upon such express warranty and its falsity, we are not prepared to say that it would not have been a bar to an action of assumpsit on the same warranty. We think that it would, because, the same evidence would support both actions, and the damages recovered in one, would be a satisfaction of those claimed in the other. But here was no such express warranty, and the qualified warranty attempted to be shown by parol, which we think was competent only as evidence of representation, might not cover the whole matter of the plaintiffs’ complaint. ■ And the effect of the charge was, that notwithstanding the failure of the plaintiffs to support this action, it would not be a bar to any action founded on con tracts made on good consideration, in regard to the subject matter of this sale and not involving a charge of falsity or deceit. In this respect, we think, there was no error in this charge.

On the whole, the Court are of opinion that there is no sufficient ground for sustaining the exceptions, and that judgment is to be rendered on the verdict for the defendants.