State v. Katcef

• Court: Maryland Supreme Court
• Writing for the Court: PARKE, J.
• Citation: State v. Katcef, 159 Md. 271, 150 A. 801 (Md. 1930)
• Decision Date: 11 June 1930
• Docket Number: 32.
• Parties: STATE, TO USE OF CAVEY, v. KATCEF ET AL.

150 A. 801

159 Md. 271

STATE, TO USE OF CAVEY, v. KATCEF ET AL.

No. 32.

Court of Appeals of Maryland

June 11, 1930

Appeal from Baltimore Court of Common Pleas; Albert S. J. Owens Judge.

Action by the State, to the use of Charles K. Cavey, father of Charles I. Cavey, infant, deceased, against William M. Katcef and another, individually and as copartners trading as William M. Katcef & Bro., and others. Judgment sustaining demurrers to the declaration, and plaintiff appeals.

Affirmed and remanded to afford opportunity to amend declaration.

Argued before BOND, C.J., and URNER, ADKINS, OFFUTT, DIGGES, PARKE and SLOAN, JJ.

Harry Rosenberg, of Baltimore, for appellant.

Edwin H. Brownley, of Baltimore, for appellees.

PARKE J.

The judgment in this case was entered for the defendants upon the court sustaining their several demurrers to the declaration in an action brought under sections 1, 2, 3, and 4 of article 67 of the Code for the use of the surviving father of an infant whose death was alleged to have been the result of the wrongful acts of the defendants. There is but one count which is quite lengthy, and need not be reproduced, as omitting the introduction and conclusion, and the allegations of the relationship of the father and son and the services rendered by the infant to the parent, the fundamental facts to constitute a cause of action may thus be stated:

The proceedings are against William M. Katcef and Moses Katcef, individually and as partners trading as William M. Katcef & Bro.; James King & Sons, Inc., a corporation; and Robert W. King. The partners and the corporation were engaged in the business of buying and selling horses. The partners owned a horse, which they knew "had a propensity to be vicious, unruly, unmanageable, shy, and dangerous to drive," and some time in the month of July, 1928, they delivered the animal to the corporation to sell, and the corporation had the horse in its possession until July 19, 1928, when its vice president, Robert W. King, sold the horse to a certain James Pryor, who is not a defendant, upon the representation that the beast was gentle and easy and quiet to drive and was not shy, when the corporation and its vice president knew, or by the exercise of ordinary care and caution could have known, that the horse did not have the mentioned qualities but had a propensity to be vicious, unruly, unmanageable, and dangerous to drive. The buyer did not know of these faults at the time of the sale, and accepted the representation as true. The horse was delivered to the purchaser and the following day was harnessed and hitched by the owner to his wagon, and, by reason of the animal's propensity to be vicious, unruly, unmanageable, shy, and dangerous to drive, and without any negligence or want of care on the part of the owner, the horse suddenly and without warning ran away with the wagon down a public alley until he ran into a pony wagon drawn by a pony and standing in the alley in the possession and under the control of the father, who had permitted the infant to sit on the seat of the wagon. The child was killed in the collision without any fault on his part.

The representation of the qualities of the horse was made by the corporation through its vice president, whose act was that of the corporation. There is no allegation that the sellers authorized the agent to make any representation or warranty, nor were the sellers bound to make to their agent any disclosure of their knowledge of the defects, so the declaration is free of averment imputing to the sellers any wrongful act done by them personally. But when made, as here alleged, for their benefit and within the course of the agency to sell, the principals are responsible for the agent's false representation, although given without their express command or privity. In order to characterize the act of the agent as willful, the pleader charged the agent in the alternative with actual or imputed knowledge of the falsity of its representation. If the agent knew or believed the representation to be false, or if it undertook to state as a fact what the agent did not know was true or false, in order to make a sale, the agent was guilty of a fraud, and the agent and its corporate officer making the representation would be jointly liable with the principal because a material representation of a quality or condition of the thing sold with a knowledge of its falsity, or a reckless indifference to whether it is true or not, would make the representor and agent liable with his principal for the fraud. If, however, the agent acted in good faith, and the fraud or deceit with respect to the quality of the horse was the principal's act alone, the principal and not the agent and its executive officer making the representation would be liable to a third party; nor would the agent and its executive officer be liable to a third party for mere neglect in not ascertaining by inquiry or trial the quality or condition of a horse in the agent's hands for sale. Mechem on Agency (2d Ed.) §§ 1987, 1458, 1459, 1464-1469, 1482; Pollock on Torts (8th Ed.) 303, 304.

It follows that the agent and its vice president, who made the representation, may or may not be jointly liable in tort with the principal according to the actual facts; and so to charge these defendants in the alternative, as was done in the declaration, is bad, since by one alternative they are bound and by the other, in the absence of particular circumstances, they are exonerated from legal liability. The rule of certainty in pleading demands that the parties should not be joined unless the allegations are consistent with a joint liability. The declaration was therefore bad for the misjoinder of the agent and its vice president. Keyser v. Richards, 148 Md. 669, 677, 130 A. 41. 2. If the representation be found to be untrue, the buyer has a remedy in contract; but if the representation be fraudulent, the buyer may, at his election, treat the representation as a substantive ground of action in tort. Should there be no breach of contract, nor of...