Nichols v. Bruns

• Decision Date: 08 February 1888
• Citation: 37 N.W. 752,5 Dakota 28
• Parties: Nichols v. Bruns et al.
• Court: North Dakota Supreme Court

37 N.W. 752

5 Dakota 28

Nichols v. Bruns et al.

Supreme Court of Territory of Dakota

February 8, 1888

Appeal from district court, Cass county.

Action of tort in the nature of deceit, by James K. Nichols against Henry A. Bruns, Edward E. Moore, and Benedict Howard. Judgment for plaintiff, and defendants appeal.

R. R Briggs, for appellants. Horace Austin and Wilson, Ball & Wallin, for respondent.

TRIPP C. J.

This is an appeal from Cass county. The action is one of tort in the nature of deceit. The complaint charges a conspiracy on the part of the defendants, Bruns, Moore, and Howard, carried into effect through the agency of defendant Howard, acting for and on behalf of all the defendants, whereby the plaintiff was induced, through the fraudulent representations of said Howard, made with the knowledge of the other defendants, to convey to them certain lots in the town of Moorhead, for a sum much less than the real value, and by reason thereof he suffered damages, etc. The defendant Howard answers separately, and the defendants Moore and Bruns jointly. The answers of all the defendants, in effect, deny generally the allegations of the complaint, and specifically the allegations of conspiracy, fraud, and deceit. The answer of Moore and Bruns specifically pleads ignorance of the fraudulent representations alleged in the complaint, and the defendant Bruns specifically pleads a want of authority on the part of defendant Howard to make the purchase for him or on his behalf. No objection is raised by either party to the form or sufficiency of the pleadings, and the case seems to have been tried upon the theory that they were sufficiently expansive to cover any case made by the evidence. The entire evidence and the charge of the court is set out at length in the record, and the exceptions taken are numerous; the assignment of errors alone covering 14 printed pages. A motion for a new trial was made and filed more than one year after the verdict was rendered; but, as the order denying it does not state the grounds upon which it was denied, it must be presumed to have been upon the ground that the motion was not made within the time nor in the manner prescribed by statute. It cannot, therefore, be considered, and the court will be confined to errors contained in the bill of exceptions and apparent of record.

At the close of the evidence the plaintiff seems to have practically abandoned the theory of active conspiracy, and to have based his right of recovery against the defendant Moore upon the theory that he, having authorized the purchase, was bound by the fraudulent representations of Howard made in his (Moore's) interest, though made without his knowledge or consent; and that, as to defendant Bruns, he, having accepted the deed, and paid therefor, thereby made Howard his agent and ratified his acts, including all fraudulent representations made to the plaintiff; and plaintiff accordingly asked and obtained from the court the following instructions, among others, to the jury: "That it appears from the evidence, and is not controverted by either party, that the defendant Howard acted, in making the purchase, not only for himself, but for the defendant Moore and had express authority from said Moore to insert his name in the deed as one of the purchasers; that when defendant Bruns adopted the purchase, and consented that the same should stand in his name as one of the grantees in the deed of conveyance, he confirmed Howard's agency in acting for him (Bruns) in making the purchase, even though Howard's action in Bruns' behalf had before this been entirely voluntary on his part, and unauthorized by others; that if the jury find from the evidence that the defendant Howard acted, in making the purchase, as the agent of the other two defendants by their authority, or that they thereafter adopted the purchase made by Howard, and have adopted the fruits and profits of and arising from the conveyance, then they are, and each of them is, responsible for all the means employed by their said agent to effect the sale, and damage to be ascertained and computed as above directed." This instruction was duly excepted to, and assigned as error. In giving this instruction, in our judgment, the court erred. It is safe to say it has never been sought before to extend the liability of the principal for the torts of his agent to this extent. It is a much-mooted question whether the principal is ever liable, in an action of tort, for the fraudulent misrepresentations of his agent, made without the knowledge or authority of the principal. In England, in 1867, within two days of each other, two decisions of apellate courts were handed down, in which those learned courts came to exactly opposite conclusions; the one, Barwick v. Bank, L. R. 2 Exch. 259, holding that the principal is liable in tort for the fraud of his agent committed in the course of his business, though without the knowledge of the principal; and the other, Bank v. Addie, L. R. 1 H. L. Sc. 146, holding that such an action cannot be maintained, that fraud is in its nature willful, and that the principal or master is not, as a rule, liable for the willful wrongs of the agent or servant. The doctrine ofBank v. Addie, supra, has been adopted in America by the New Jersey court, in Kennedy v. McKay, 43 N. J. Law, 288; and the doctrine of that case seems to have been adopted in Page v. Parker, 40 N.H. 47, which is cited in 1 Suth. Dam. 212, as holding that "an action for deceit, in the nature of a conspiracy, cannot be sustained against a principal for the unauthorized fraudulent acts and representations of the agent alone." The doctrine of Bank v. Addie, supra, has, however, been somewhat modified in England by later decisions, (Swift v. Winterbotham, L. R. 8 Q. B. 244; Mackay v. Bank, L. R. 5 P. C. 394; Houldsworth v. Bank, 5 App. Cas. 317;) but it may be safely stated that the rule has never been extended further than to hold the principal liable in tort for the fraud of his agent committed within the scope of his authority.

This instruction goes to the full extent of telling the jury that if the defendant Bruns accepted the deed, he thereby ratified the fraudulent representations of Howard, though ignorant that any such representations were ever made; for the instruction is that, "if he adopted the purchase made by Howard," then he "is responsible for all the means employed by the agent to effect the sale." There can be no other meaning, and the jury could have understood the instruction in no other way than that, if he accepted the deed, he was equally liable with Howard for the false representations. There was little left for the jury on this branch of the case. The accepting the deed was admitted, and the defendants Bruns and Moore stood before the jury in the same shoes with Howard. There is no modification of this instruction in the general charge of the court or elsewhere. The court nowhere tells the jury...