Birdseye v. Flint

3 Barb. 500

• Court: New York Supreme Court
• Decided: July 4, 1848
• Status: Published

Opinion

By the Court,

Gridley, J.

The plaintiff has recovered against the defendants jointly, a verdict of $1600, in an action on the case for damages sustained upon an exchange of farms, induced by certain fraudulent ¿representations made by the defendants. The fee simple of the farm conveyed to the plaintiff was owned by the defendant Sally Ann Flint. And the fraudulent representations are alleged in the declaration to have been made by both defendants at the dwelling house of the plaintiff in Palermo, in the county of Oswego, on the 24th day of November, 1843. It is further averred that by means of these false representations the plaintiff was induced to make the exchange, which was consummated on the 4th day of December following, by the execution and delivery of the proper conveyances to carry out the contract. The farm conveyed by the defendants to the plaintiff, was situated in the state of Michigan, and the defendants resided, at the time of the exchange, in the county of Madison, and the plaintiff in Palermo aforesaid; and the parties were strangers to each other previous to the negotiation. Evidence was given, on the trial, of the' negotiation, and of certain false representations concerning the Michigan farm, made by the defendant Calvin N. Flint, at the plaintiff’s house at Palermo, on or about the 24th of November, 1843; but it was proved that Sally Ann Flint was not present at the negotiation, nor when any of the false representations were made by her husband. There was no proof that she made any representations herself until April, 1844, some four months after the deeds were delivered. It was shown in the course of the trial, that while at Palermo, the defendant C. N. Flint made a map of the Michigan farm, which he alleged to be a correct representation of it. This map, it also appeared, was present at the house of Sylvester .Beecher, the father of Mrs. Flint, on the 4th of December, when the respective deeds to consummate the exchange were executed by the parties; and that on that occasion Mr. Beecher altered it so as to make it a more accurate representation of the farm. On the trial evidence was given showing this map to be incorrect, and some evidence was given tending to show it a fair representation of the premises. The bill of exceptions shows that Mrs. Flint was at her father’s house on the day it was so altered, and at the time when the map was altered; but there was no evidence that she saw the map on that day, or knew of the alteration, or heard any thing said concerning it.

At this stage of the trial, the plaintiff offered to show that in the month of April, 1844, and before the plaintiff and his family had left the Oswego farm, the defendants came to the residence of the plaintiff in Palermo, and that then the defendant Sally Ann Flint made representations to the plaintiff similar to those made by her husband, before the deeds were executed. This testimony was objected to, but admitted by the judge. And thereupon it was proved by a son of the plaintiff that Mrs. Flint answered to questions put.to her by the witness, that the exchange was an even one; that she thought the plaintiff had made a thousand dollars by the trade. The map was also exhibited on this occasion, and she expressed the opinion that it was drawn correctly, and said to the plaintiff, “You will be charmed with the farm; at least we were.” To the admission of this evidence the defendants’ counsel excepted.

I. Now, upon this state of the case, we are of the opinion that in receiving this evidence the circuit judge erred. We see no possible ground upon which its admission can be sustained. (1.) It was received under an offer to show similar representations to those made by her husband on the 24th of November, 1843, and to support the averment of a joint fraudulent representation, relying on which, the plaintiff was induced to make the exchange of farms. That the plaintiff could not have been induced to make the exchange by representations made four months after the conveyances had been exchanged, is too plain a proposition to be argued. It would have been erroneous to admit such representations made by Calvin N. Flint himself. (2.) Nor do we think that these representations amounted to any evidence of a previous authority to her husband to make the representations'on the 24th of November. They were not offered as admissions, nor were the declarations of Mrs. Flint proved by young Birdseye, in the form of admissions ; nor was there the slightest allusion to any representations previously made by her husband. On the contrary, they professed to be, and they were in truth, nothing more than a present assertion of a fact and the expression of an opinion then entertained by her. It is a part of the case, that the parties living in different counties, and being strangers to each other, met for the first time on the 24th of November, the defendant Flint having been induced to call by seeing a sign on the premises indicating that they were for sale. Her remark as to the accuracy of the map, carries with it no evidence that she had ever before seen it, much less that she had been concerned in its use by her husband, to deceive the plaintiff. It was shown to her by young Mr. Birdseye, or she happened to see it during the conversation, and made the observation that she thought it was drawn accurately. These declarations therefore were not legitimate evidence, by way of admissions, to prove that Mrs. Flint had ever made similar representations before the exchange of farms; or that she authorized her husband to make any; or that she had any knowledge that he ever did make any. We think, therefore, that the evidence in question was erroneously admitted.

II. If we are right in the conclusion to which we have thus arrived, then there is no evidence against Mrs. Flint upon which the verdict against her can rest. It is indeed presumed that she was at the house of her father on the day when the deeds were executed, and when her father made some corrections of the map mentioned in the bill of exceptions; but it is not proved that she saw the map, that she heard what her father said concerning it, or that she then had any knowledge of its existence. It cannot be maintained that this is enough to charge a party with the consequences of a fraud like this, were it alleged in the declaration, which it is not. (See Ward v. Center, 3 John. Rep. 271; 18 Id. 403 ; 8 Cowen’s Rep. 361.)

III. It is said that Mrs. Flint is responsible for the frauds of her husband upon the ground which makes a principal liable for the frauds of his agent; and a partnership firm liable for the frauds of one of its members. We, however, cannot assent to the applicability of this principle to the present case, for several reasons. (1.) The defendants were not partners in any sense of the term. Mrs. Flint was the owner of the fee of the land, and her husband was tenant by the curtesy; and that relation gave him no authority to contract in relation to her interest. Nor was he her agent in fact, (irrespective of her incapacity at law to create an agent.) Nor did he profess to act for her. On the contrary, he informed the plaintiff that if he would come out to Madison county, “ he guessed his wife, who held the deed, would consentthus disclaiming any right or authority to act for her, and giving the plaintiff to understand that she must consent and act for herself. The husband was contracting to dispose of his own interest in the premises of his wife, and (in the absence of any evidence to the contrary) he must be deemed to have made the representations on his own behalf, notwithstanding the disposition of his own interest in the farm was dependent on the election of his wife to dispose of her interest also. There is therefore no ground for saying that the representations were made by the husband as agent of the wife, and still less, that she adopted these representations, after they were made, and therefore became responsible for them. (2.) Mrs. Flint could not be liable for the acts of her husband upon the ground that he was her agent, for still another reason. She could not appoint an agent. She could not contract herself, nor appoint an agent to contract for her at law. Her contracts in relation to her separate estate, could be enforced in equity, but she had no power to contract so as to bind herself at law. Nor could she do this by an agent. Suppose she had, under her hand and seal, appointed her husband her agent to dispose of her land, and he had acted under the power; the contract would have been void at law; and the appointment of an agent to do a void act would have been void also. I speak now of her contracts and those of her agent as they would be regarded in a court of law; for we have no concern here with any rights that might be enforced in a court of equity. These principles are so familiar that it is unnecessary to cite cases to prove them. (3.) Again; it is said that Mrs. Flint reaped the fruits of the'fraud of her husband, and is therefore liable. He reaped the fruits of his own fraud. His interest in the farm may have been even more valuable than her’s. She.was however, unquestionably, somewhat benefited by the fraud of her husband. But we cannot believe she is liable for that fraud, jointly with him in this action. If she is liable on that ground, he of course is liable jointly with her. But, to what amount ? Clearly not to the amount of the entire difference in the value of the two farms. Suppose A. & B. are tenants in common of a farm; A. owning T\ths, and B. Tuth of it; and A. proposes to C. to exchange this farm for one owned by C., and induces him to consent to the exchange by fraudulent representations, telling him, however, that he has no authority to consent for B., but he believes that B. will consent; and B. does consent; and the farms are exchanged, without any fraud on the part of B., or knowledge that A. had been guilty of any. Now, in this case, B. has to some extent, though innocent, been benefited by the fraud of A. It is difficult to conceive, however, that he would be liable, in an action on the case, to C.; (Aikin v Morris, 2 Barb. Ch. Rep. 144;) and still less, that he would be liable in a joint action with A., and to the amount of the entire difference in the value of the two parcels of land. The case at bar is, in principle, precisely similar. If we grant the right of action at all, as against Mrs. Flint for the fraud of her husband, upon the ground that she was benefited by it, then the defendants are jointly liable for the difference between the value of Mrs. Flint’s estate in the two farms respectively. But the defendant, Calvin N. Flint, would be solely liable for the difference between the value of his own interest in the two farms. It seems to us, therefore, quite clear that these two causes of action cannot be united in one suit. By joining them, Mrs. Flint is made responsible for the damages which are •chargeable upon her husband alone, as well as for those chargeable, against her.

There are other very grave objections against the right to sustain this action, which we have not considered necessary to examine. We see no evidence upon which Mrs. Flint can be made liable. If the defendant, Calvin N. Flint, was irresponsible, the plaintiff’s true course was to have filed his bill in chancery to rescind the contract of exchange, as soon as he discovered the fraud that had been practised upon him.

New trial granted.