No question is made by the defendant’s counsel of the correctness of the doctrine that a principal is liable for the false representations of his agent, although personally innocent of the fraud. It is settled by the clear weight of authority.
But it is contended that the principal and agent cannot be jointly held to answеr for a fraud committed by the agent in the course of his agency, in which the principal does not participate ; and that this is decisive against the present аction. A question somewhat analogous is discussed in Parson v. Winchell,
But we cannot think the principles there laid down are applicable to a case like this. Here the рerson who made the fraudulent representations was acting, not only as an аgent, but also as a principal. In Cook v. Castner,
Thаt case seems very much like the present; for there, though the two owners arе spoken of as partners, they were partners only, as the facts show, by being сo-owners of a vessel, which they joined in selling to another party. So in the prеsent case, the parties were “ sole owners, each of one half ”; but thе halves were undivided, and they joined in the sale of them, thus making a sale of the wholе.
The action is for the tort, the wrongful act done by the deceit practised in the sale. The damages are not limited to the profit which the vendors or either of them derived from the
But, farther than this, we think the two owners must be considered as partners in the sale and the fraudulent representatiоns accompanying it; and, upon this ground, are jointly liable. The distinction attempted to be made between that which is done for one part of the chattel аnd that which is done for the other is rather metaphysical than practical. If twо separate owners, each of an undivided half of a carriage, employed the same servant to drive the two halves along a highway, would they not be jointly responsible for his negligence in driving? Yet there it might be said that each employеd the man only to drive his separate half. The difficulty is that the careless driving in the onе "case, and the making a false representation in the other, is an indivisible act. If there is no joint interest in the fruits of the fraud, that is no objection in the case of a conspiracy, where the parties join in the tort, but each for his several advantage. The defendants joined in the act; the one in his own person, for his own рrofit; and the other, through his agent, representing and binding him by his conduct and statements. In reference to the particular transaction, namely, -the joining in doing one thing for their mutual benefit, there would seem to be all the elements of a partnership.
Exceptions overruled.