Brundage v. Mellon
| Decision Date | 21 May 1895 |
| Citation | 63 N.W. 209,5 N.D. 72 |
| Court | North Dakota Supreme Court |
Appeal from District Court, Burleigh County; Winchester, J.
Action by John N. Brundage against R. B. Mellon, surviving partner of the firm of Mellon Bros. Judgment for defendant, and plaintiff appeals.
Reversed.
Judgment of the District Court reversed, and a new trial ordered.
Newton & Patterson, for appellant.
E. W Camp, for respondent.
Defendant was sued as surviving member of the firm of Mellon Bros. for deceit in the sale of horses by such firm to plaintiff. On the trial, plaintiff sought to establish the allegations of the complaint as to fraudulent representations connected with such sale by offering to prove that the member of the firm who was dead at the time of the trial had, in effecting the sale, made certain representations touching the soundness of the horses sold. The evidence was excluded by the trial court, plainly on the ground that one partner is not liable for the fraudulent representations of his copartner in effecting a sale of partnership property. This is not the law, and, on principle, it ought not to be the law. Although a few courts have taken a different view of the question, there is ample authority to support the rule which renders all the members of the firm liable for the tort of one of its members under such circumstances. 1 Bates, Partn. § 472; Chester v. Dickerson, 54 N.Y. 1; Mechem, Ag. § 743; Wolfe v. Pugh, 101 Ind. 293; Story, Partn. § 108; Strang v. Bradner, 114 U.S. 555, 5 S.Ct. 1038, 29 L.Ed. 248; Locke v. Stearns, 42 Mass. 560, 1 Metc. 560; Jewett v. Carter, 132 Mass. 335. See, also, Haney Manuf'g Co. v. Perkins, 78 Mich. 1, 43 N.W. 1073; Stanhope v. Swafford, 80 Iowa 45, 45 N.W. 403. Our Code settles the law in this state. The liability of one partner for the act of another partner is declared by section 4052, Comp. Laws, to be governed by the title relating to agency; and, when we turn to that title, we find it there clearly asserted that the principal is liable for the wrong of the agent when committed by him in and as a part of the transaction of the business of the principal. Comp. Laws, § 3997. The offer of the plaintiff by the questions he asked was to prove a representation made by the deceased partner in and as a part of the transaction of the business of his principal; i. e. the other partner, the defendant in this case. The offer was to prove that the representations were made in connection with a sale of partnership property, and as a means of effecting such sale. It is obvious that the trial court ruled out the evidence on the theory that the defendant was not liable for the deceit of the deceased partner, as the ruling followed a statement by plaintiff's counsel, in answer to an inquiry by the court touching the nature of the action as disclosed by the complaint, that it was not an action for breach of warranty, but for deceit.
But it is insisted that plaintiff failed to establish, or offer to establish, a case against defendant even assuming that the evidence rejected had been received. But we do not think that, in the absence of notice from the court that he must so do, a party is bound to proceed to offer further evidence in the case when a ruling is made which renders it impossible for him to recover. The plaintiff, by the decision of the trial court, was notified that, no matter what he might prove, he could not make out a cause of action for deceit against defendant, unless he (defendant) could be personally connected with the wrong. It was waste of time for him to proceed further. Nay, the foundation for further proof was wanting. He could not prove that the representations were false, and were known to be false by the party making them, with no representations established in the case on which he could base a further inquiry. The true rule is stated in Loeb v. Willis, 100 N.Y. 231, 3 N.E. 177. The court say, at page 235, 100 N.Y., and...
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