Barnard v. Coffin , 1884 Mass. LEXIS 7 ( 1884 )

Field, J.

If the plaintiff merely employed the defendants to get offers and report them to him, and he on his own judgment accepted an offer they reported, it is difficult to see how the defendants can be held responsible for the fraudulent conduct of Ochs, unless they participated in it.

If Ochs was the agent of the defendants and they are responsible for his acts under the rule of respondeat superior, the cause of action is the malfeasance of Ochs, for which the defendants are responsible, independently of any negligence on their part.

If the plaintiff acted wholly on his own judgment in accepting the offer, and the defendants made no recommendation on which the plaintiff relied, any negligence of theirs in not getting the best offers becomes immaterial, provided they were only employed to get offers and they reported all the offers they received. If Ochs was not the agent of the defendants in any such sense that they are responsible for his acts, then the defendants, if liable at all, must be liable on the ground of negligence in employing such a man as Ochs was, or in receiving and reporting such an offer as he made, and then in advising the plaintiff to make the sale on the terms of this offer, or, if it was left to them to determine, in making the sale themselves, without having taken any reasonable care in ascertaining the market value of the land.

The finding of the court for the plaintiff is put wholly on the ground that the defendants were negligent “ in and about the sale.” The defendant Henry testified that he had no knowledge of the markét value of Illinois lands, and it does not appear that Coffin had any. Henry’s information seems to have been derived wholly from Ochs, and he did not write to his partner Coffin that he had any other knowledge of the land or of its value. The plaintiff testified that Coffin said, “ It is a good sale,” and in Coffin’s first letter to the plaintiff he says, “We think it is a fair price, or our Mr. Henry would not have submitted it.” The plaintiff testified that he told Coffin to telegraph to Henry, “ I will accept offer • if a good sale and no coal on it.” The telegram sent was, “ If selling as farming land Barnard will accept ten dollars, but not if any coal value.” It does not appear that the land was valuable for coal. The telegraph omits the condition that it must be. a good sale. Before the plaintiff signed the deed, he received the defendant’s letter of June 19th. That omitted some clauses contained in the letter of Henry to Coffin, but we do not see that the omissions are important on the question of negligence.

If we assume that the court, on the evidence recited, could properly find that the defendants advised that the sale was a good one on the terms reported; that the plaintiff relied on them to some extent, and did not himself know the market value of the land; that the defendants had not sufficient knowledge of the value of the land to justify them in giving the advice; that they did not inform the plaintiff that they knew nothing of the value of the land except what Ochs had told them; and that the acceptance of the offer by the plaintiff was on the condition that the defendants thought it a good sale; and that the defendants honestly thought it a good sale, but neglected to make such inquiries as they ought to have made in order to justify them in advising the plaintiff that it was a good sale, what is the law applicable to such a state of facts ? For giving an opinion that it was a good sale, if it was an honest opinion, the defendants are not responsible in damages unless they also made some misrepresentation of facts. They were originally employed to get offers, and were not employed to make the sale according to their discretion. If they gave advice about it, whether asked or not, and it was honest advice, they are not liable, although they did not know enough about the matter reasonably to give advice, unless they made some misrepresentation of the kind and extent of their knowledge, or of some other material fact. If, however, the final authority given by the plaintiff was that the defendants might accept the offer only on the condition that it was a good sale, and the defendants were informed that the plaintiff relied upon them to decide upon that, and the defendants accepted this responsibility, we think they were bound to exercise reasonable care in determining this, and that there was evidence that they did not exercise reasonable care in this respect. Whether the court below found, as a fact, that this was the final authority given, we do not know. There is no evidence that Henry had any knowledge of any such condition; but if this was the authority given to and accepted by Coffin, the defendants cannot escape responsibility because Coffin neglected to communicate this condition to Henry. In the letter to the plaintiff of June 19, the authority to sell is substantially recited, and the only condition there attached is that the defendants must be satisfied that there was no coal, and it does not appear that the plaintiff ever objected to this statement of the authority he gave. A slight difference in the language used in the conversation between the plaintiff and Coffin would change the legal effect. If Coffin said, “I think it is a good sale,” and Barnard said, “ If you think it is a good sale I will accept the offer, provided there is no coal' on the land,” that would not be enough. The language, whatever it was, must have been such that Coffin as a reasonable man must have understood that the plaintiff placed on the defendants the responsibility of determining whether it was a good sale, and Coffin must have accepted this responsibility.

Under the authority originally given to the defendants to report offers, they asked Ochs to find a customer, and Ochs reported to them an offer. The court found that this offei was never made unless by Ochs on his own account; and then ruled that “ the defendants were bound to see to it that the offer transmitted was a genuine offer, and not an offer of the sub-agent,” by which was meant Ochs. It is not found that the defendants knew that the offer was by Ochs on his own account. The offer was a genuine one in that it was actually made, accepted, and performed. This is a ruling of law, and we do not think that there is any such rule of law where the principal is not responsible for the acts of the agent, and we infer that the court below was of opinion that the defendants were not responsible for the fraudulent acts of Ochs, although the ruling as applied to the evidence perhaps amounts to a ruling that they were. Exceptions sustained.