Vanneman v. Powers ( 1872 )

By the Court—

Gilbert, J.

The appeal being from the judgment, we are precluded from a review of the facts further than to see that they are sufficient to warrant the verdict of the jury. Upon this subject we think a strong case was made in favor of the plaintiff. The action was for damages sustained in consequence offraudulent representations. That the plaintiff was defrauded was clearly proved, and the evidence, we think, was sufficient to warrant the conclusion that Mrs. Powers was an active party to the fraud. She was, therefore, liable, irrespective of the question of the agency of her husband. Being privy to his fraudulent representations, she was equally liable as if those represenations had been made with her own month. The case was submitted to the jury in that view, and they evidently were satisfied that Mrs. Powers was guilty of the fraud. We do not see how they could have reached any other conclusion. The letter of Mr. Barowsky cannot be considered an overture for a rescission of the contract, which was the subject of the fraud, nor was any rescission accomplished, because Mrs. Powers did not offer to return the notes. If there had been an offer to rescind, and it had been accepted and carried out by the defendant, there might be ground for holding that the parties had settled the matter by way of accord and satisfaction. But the evidence falls short of that. The plaintiff was, therefore, entitled to retain his bargain and recover the damages which he had sustained by means of the fraud. If the foregoing views are correct, none of the defendant’s exceptions are tenable.

We are also of opinion that Mrs. Powers was liable in damages for the fraud of her husband, on the ground that the representations of an agent are in law the representations of the principal. In respect of the liability of a principal for the acts of his agent done in the course of the agent’s employment and for the benefit of the principal, no sensible distinction can be drawn between the case of fraud and any other wrong. For what difference can it make to the person defrauded whether the principal sends an agent to cheat him, or does it himself?

The judgment must, therefore, be affirmed, with costs.