The opinion of the court was delivered by
Bennett, J.
— This case comes before the court upon two bills of exceptions, one allowed to each of the defendants ; and upon a motion in arrest for the insufficiency of the declaration. The declaration sets forth an action on the case in the [533]*533nature of a conspiracy ; and, in the argument, no objections to . . . the declaration have been pointed out; and we do not discover any that can avail the party.. The declaration states, in substance, that after D. W. Page had ceased to have any interest in either of the co-partnerships, and the plaintiffs had become obligated to save him harmless from, and pay all the debts of either of the firms, he and G. W. Page fraudulently combined to cheat the plaintiffs by means of the notes executed by D. W. Page to his brother, in the name of the firm ; that the notes were made and delivered to G. W. Page to effect this object, and to enable G. W. Page to prosecute the same and obtain payment thereof from the plaintiffs ; and that he afterwards did present them and by his false and fraudulent representations procured their payment. Though it is well settled that the damage to the plaintiffs is the gist of the action — and not the conspiracy; yet where two or more combine together for the same illegal purposes, each is to be considered as the agent of the others, and the act of one, in pursuance of the object, is, in legal contemplation the act of all. The declaration avers the fraudulent combination between the defendants to cheat the plaintiffs, by the means set forth, and that the notes were executed and delivered to G. W. Page to enable him to prosecute them for payment; by which means the fraud was to be perfected. The acts, then, of G. W. Page in obtaining payment, were directly in furtherance of the original design, necessarily from their very nature and character. In such case, it is sufficient, if it be averred in the declaration to have been done individually. Such act, in judgment of law, is the act of all. Jones v. Baker, 7 Cow. R. 445. Livermore v. Herschell, 3 Pick. R, 33. Tappan, et al. v. Powers et al. 2 Hall’s R. 298. This declaration,“then, must be held sufficient against both defendants.
The conspiracy, charged in the declaration, is important, only as it serves to give character to the individual acts of those, who were parties to it. The gist of this action is the damage sustained by the plaintiffs, by reason of the fraud of the defendants. The question then presents itself, — is there any good ground of exception to the instructions, given by the court below to the jury, as to-either of these defen- [534]*534' We will first examine the bill of exceptions, allowed to G. W. Page.
The plaintiffs, to sustain this action, must prove a fraud to have been committed by the defendants, and that a damage has, by means thereof, resulted to them. Whether the deceitful and fraudulent means have been used, as alleged, and whether the plaintiffs have been, in fact, deceived by them to their injury, were questions for the jury. Though representations, made by the defendants, may have been false, and this known to them at the time, still, if the plaintiffs knew them to be false, they cannot have been deceived, and they have no ground for this action. The plaintiffs must have acted relying upon the truth of the representations; and they must have been such, as were likely to impose upon a man of ordinary prudence and caution, and to throw him off his guard on a point where he might have reason to rely upon the representation of the defendants. Without this, there can be no such fraud, as is actionable in our courts of justice. If the instructions given to the jury would have warranted them in giving a verdict for the plaintiffs, without finding that they had been deceived and defrauded by the representations of the defendants, most clearly there is error in the charge. Before the jury can find for the plaintiffs, against G. W. Page, they must, according to their instructions, have found ; “that the defendants fabricated the notes after the dissolution of the partnerships with a view to charge the plaintiffs with the payment of the same, and that, after this, George W. Page, in furtherance of this object, induced the plaintiffs to pay the same, in the manner stated, without disclosing the fact that they had been set on foot subsequent to the dissolution of the two partnerships.” The case finds that the notes bore date prior to the dissolution of the first partnership, and, if in fact executed after its dissolution, they must have been antedated ; and with the basest purposes, if done with the intention of making the plaintiffs chargeable,, under the circumstances detailed in this bill of exceptions, with the payment of them. They must also have found that the defendant, G. W. Page, in furtherance of this object, that is, to charge the plaintiffs with the payment of the notes, induced &c,, in “ the manner stated” in the case. It is important to see what this manner [535]*535was. This defendant claimed of the plaintiffs, that the notes were given for-the goods winch he had delivered to the firm, and about the times of such delivery, and that though at first it was agreed, that Flint should not take the notes of the firm given for the farm deeded by Flint to D. W. Page, until George W. Page should have delivered the goods to the firm; yet that, subsequently, a different arrangement was made, and the firm was justly made liable to him for the goods by means of the notes. The enquiry then is, were these inducements false and known at the time to be false ? And were the plaintiffs thereby deceived ? The case finds that the last partnership was not dissolved until October, 1834, and the jury, under the charge of the court, must have found that, in point of fact, the notes were made after that time, and that they bore a false date. The case also finds that the goods were delivered by George W. Page to the first firm, to pay them for the notes which they had given to Flint for the land, and that the bills for the goods were then receipted by George W. Page in full. When facts are stated in a case we are to consider them either as admitted on trial, or else so established as not to be the subject of controversy. It is impossible then that the goods should have formed a just consideration for the notes in question. There is not in the case the least evidence tending to prove any new arrangement subsequently made in regard to the goods. The inducements, then, held out to the plaintiffs, to settle the notes, were false, and this must have been, from the nature of the case, known to the defendants. They were the very actors in the scene. Does the case show that the jury must have found that the plaintiffs have been deceived ? The notes in question, from their date, purport to have been executed before the dissolution of the first partnership; and G. W. Page, when he presented the notes for payment to the plaintiffs, insisted that they were given about the time of their dates and for the several bills of goods he had delivered the firm, and that the goods had in no other way been paid for, and that the notes were his just due.
This was in June, 1835. The plaintiffs had a right to rely upon these representations; and the court charged the jury that they must find, that the plaintiffs were induced, in [536]*536the manner stated — that is, by these representations — to set-tie and pay the notes.
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The opinion of the court was delivered by
Bennett, J.
— This case comes before the court upon two bills of exceptions, one allowed to each of the defendants ; and upon a motion in arrest for the insufficiency of the declaration. The declaration sets forth an action on the case in the [533]*533nature of a conspiracy ; and, in the argument, no objections to . . . the declaration have been pointed out; and we do not discover any that can avail the party.. The declaration states, in substance, that after D. W. Page had ceased to have any interest in either of the co-partnerships, and the plaintiffs had become obligated to save him harmless from, and pay all the debts of either of the firms, he and G. W. Page fraudulently combined to cheat the plaintiffs by means of the notes executed by D. W. Page to his brother, in the name of the firm ; that the notes were made and delivered to G. W. Page to effect this object, and to enable G. W. Page to prosecute the same and obtain payment thereof from the plaintiffs ; and that he afterwards did present them and by his false and fraudulent representations procured their payment. Though it is well settled that the damage to the plaintiffs is the gist of the action — and not the conspiracy; yet where two or more combine together for the same illegal purposes, each is to be considered as the agent of the others, and the act of one, in pursuance of the object, is, in legal contemplation the act of all. The declaration avers the fraudulent combination between the defendants to cheat the plaintiffs, by the means set forth, and that the notes were executed and delivered to G. W. Page to enable him to prosecute them for payment; by which means the fraud was to be perfected. The acts, then, of G. W. Page in obtaining payment, were directly in furtherance of the original design, necessarily from their very nature and character. In such case, it is sufficient, if it be averred in the declaration to have been done individually. Such act, in judgment of law, is the act of all. Jones v. Baker, 7 Cow. R. 445. Livermore v. Herschell, 3 Pick. R, 33. Tappan, et al. v. Powers et al. 2 Hall’s R. 298. This declaration,“then, must be held sufficient against both defendants.
The conspiracy, charged in the declaration, is important, only as it serves to give character to the individual acts of those, who were parties to it. The gist of this action is the damage sustained by the plaintiffs, by reason of the fraud of the defendants. The question then presents itself, — is there any good ground of exception to the instructions, given by the court below to the jury, as to-either of these defen- [534]*534' We will first examine the bill of exceptions, allowed to G. W. Page.
The plaintiffs, to sustain this action, must prove a fraud to have been committed by the defendants, and that a damage has, by means thereof, resulted to them. Whether the deceitful and fraudulent means have been used, as alleged, and whether the plaintiffs have been, in fact, deceived by them to their injury, were questions for the jury. Though representations, made by the defendants, may have been false, and this known to them at the time, still, if the plaintiffs knew them to be false, they cannot have been deceived, and they have no ground for this action. The plaintiffs must have acted relying upon the truth of the representations; and they must have been such, as were likely to impose upon a man of ordinary prudence and caution, and to throw him off his guard on a point where he might have reason to rely upon the representation of the defendants. Without this, there can be no such fraud, as is actionable in our courts of justice. If the instructions given to the jury would have warranted them in giving a verdict for the plaintiffs, without finding that they had been deceived and defrauded by the representations of the defendants, most clearly there is error in the charge. Before the jury can find for the plaintiffs, against G. W. Page, they must, according to their instructions, have found ; “that the defendants fabricated the notes after the dissolution of the partnerships with a view to charge the plaintiffs with the payment of the same, and that, after this, George W. Page, in furtherance of this object, induced the plaintiffs to pay the same, in the manner stated, without disclosing the fact that they had been set on foot subsequent to the dissolution of the two partnerships.” The case finds that the notes bore date prior to the dissolution of the first partnership, and, if in fact executed after its dissolution, they must have been antedated ; and with the basest purposes, if done with the intention of making the plaintiffs chargeable,, under the circumstances detailed in this bill of exceptions, with the payment of them. They must also have found that the defendant, G. W. Page, in furtherance of this object, that is, to charge the plaintiffs with the payment of the notes, induced &c,, in “ the manner stated” in the case. It is important to see what this manner [535]*535was. This defendant claimed of the plaintiffs, that the notes were given for-the goods winch he had delivered to the firm, and about the times of such delivery, and that though at first it was agreed, that Flint should not take the notes of the firm given for the farm deeded by Flint to D. W. Page, until George W. Page should have delivered the goods to the firm; yet that, subsequently, a different arrangement was made, and the firm was justly made liable to him for the goods by means of the notes. The enquiry then is, were these inducements false and known at the time to be false ? And were the plaintiffs thereby deceived ? The case finds that the last partnership was not dissolved until October, 1834, and the jury, under the charge of the court, must have found that, in point of fact, the notes were made after that time, and that they bore a false date. The case also finds that the goods were delivered by George W. Page to the first firm, to pay them for the notes which they had given to Flint for the land, and that the bills for the goods were then receipted by George W. Page in full. When facts are stated in a case we are to consider them either as admitted on trial, or else so established as not to be the subject of controversy. It is impossible then that the goods should have formed a just consideration for the notes in question. There is not in the case the least evidence tending to prove any new arrangement subsequently made in regard to the goods. The inducements, then, held out to the plaintiffs, to settle the notes, were false, and this must have been, from the nature of the case, known to the defendants. They were the very actors in the scene. Does the case show that the jury must have found that the plaintiffs have been deceived ? The notes in question, from their date, purport to have been executed before the dissolution of the first partnership; and G. W. Page, when he presented the notes for payment to the plaintiffs, insisted that they were given about the time of their dates and for the several bills of goods he had delivered the firm, and that the goods had in no other way been paid for, and that the notes were his just due.
This was in June, 1835. The plaintiffs had a right to rely upon these representations; and the court charged the jury that they must find, that the plaintiffs were induced, in [536]*536the manner stated — that is, by these representations — to set-tie and pay the notes. The fact, then, has been found by "the jury that these representations induced the payment of the notes. This could not have been, unless they had been relied upon and confided in by the plaintiffs. It is said in argument that the plaintiffs knew that the representations of G. W. Page were false, and that they had no right ta rely upon them, and could not be deceived, and consequently that this action cannot be maintained.
If the plaintiffs knew the representations to be false, they could not have been induced to act, relying upon them, and would have no ground for this action. It is true, the case finds that G. W. Page, in 1834, represented to the plaintiffs that he held no such notes; yet, in 1835, he presents to them the notes in question, dated in 1833, and, among other things, stated that they were executed about the time they bore date.
There were contradictory statements made by G. W. Page, and the plaintiffs must have been led to the conclusion that there was some mistake in this business. And which representation shall they rely upon ? They had no knowledge on the subject, but had simply the declarations of G. W. Page. The jury have found that the plaintiffs have been induced to take up the notes, by the last representations, and this necessarily implies that they must have been relied upon. If the jury had not found this, it would, under the charge of the court, have been their duty to return a verdict for the defendants.
It is also insisted that this action cannot be maintained, in-as-much as the payment of the notes in question was what the law terms a voluntary payment. A sufficient answer to this objection is, that this action is to be sustained only upon the ground that the plaintiffs were induced to take up the notes in question by the false and deceitful representations of the defendants; and the jury have found the fraud. If, then, the payment was induced through the fraudulent practices of the defendants, most clearly it could not have been, in the eye of the law, voluntary.
'The facts detailed in the bill of exceptions, allowed to D. W. Page, are essentially the same as in the other; and the court charged the jury, that if they found the notes [537]*537were executed by D. W. Page, in the name of Crosby, Page & Co., to G. W. Page, subsequently to D. W. Page’s selling out his interest in the concern to the plaintiffs, and antedated, as stated in the case, to enable G. W. Page to defraud the plaintiffs, and the plaintiffs assumed the payment of the notes by giving a new note and a confession of judgment on it, believing that the first notes had been executed at the time they bore - date, and in the course of D. W. Page’s ordinary business connection with the concern, the plaintiffs were entitled to recover, though they knew they were given for the goods.
If D. W. Page, after he had ceased to have any power to bind the firm, and after the plaintiffs had agreed to save him harmless from any debts;against them, conspired with G. W. Page, and executed notes against the firm to him, and antedated them before the dissolution, to enable G. W. Page to defraud the plaintiff's, and the plaintiffs, believing them to be legal claims against the firm of Crosby, Page & Co., paid them to G. W. Page, it is indeed a vile fraud in both of them. The fact of making the notes at a time when D. W. Page had no right to do it, and affixing to them a false date, so tha.t they might appear as legal claims, and presenting them as such for payment, without disclosing the facts attending their execution, would be such a suppression of truth as would constitute gross fraud. And the presentation of the notes, with such false date, is, in and of itself, a false representation in that which was material to the validity of the notes. And as the jury must have found that the defendants conspired in such fabrication of the notes, their scienter must have been proved as being necessarily involved in the facts which the jury were instructed they must find, to entitle the plaintiffs to their verdict. The defendants’ motion in arrest must be overruled, and the judgment of the county court affirmed.