Olmsted v. Hotailing — 1 Hill & Den. 317

Majority

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Olmsted and others vs. S. Hotailing & W. Hotailing.

Headnote

Where one of two partners obtains goods by a fraudulent representation as- to the solvency and credit of the firm, and afterward the firm sells the goods, replevin in-the cepit lies against both.'

Semble, that one claiming property through the fraudulent act of an agent, or partner, is affected by that act, so far as his civil rights are concerned, the same as if it were his own, even though he be morally innocent. '

The doctrine held in Cary and another v. Hotailing and Hotailing, (ante p. 311,) that, on questions of fraud of this nature, other contemporaneous purchases effected through similar frauds by the same party, are admissible in evidence, reaffirmed.

Replevin, for taking and retaining forty-five barrels of flour,, tried at the Albany circuit, in June, 1839, before Cushman, C. Judge. Plea non cepit.

The plaintiffs’ proof tended to make out a case- similar to that of Cary and Cary, against these same defendants; (see ante, p. 311;) and most of the questions raised and decided in that case, were also made in this. The only additional point here raised, was upon the liability of Samuel Hotailing. William, the other defendant, purchased the flour in question of the plaintiffs’ agent, Lyman Root, at Albany, on the 29th of August,. 1837, Samuel being then in New-York; and the fraudulent representations, which were like those in the other case, were made by William. The plaintiffs’ agent- caused the flour to be shipped by Samuel; and a few days afterward, the defendants sold it.

Joseph Cary, one of the plaintiffs in- the former suit mentioned, was-called for the present plaintiffs, and testified to the fraud practised upon him and his partner, in- respect to the flour and tongues there in question. The defendants objected to the testimony as irrelevant, but the judge overruled the objection, and the defendants excepted.

On the plaintiffs resting, the- defendants moved for a nonsuit, on the ground, among others, that an action in the cepit would not lie, under such circumstances. The

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judge overruled the motion, and the defendants excepted.

The judge charged the jury in respect to the liability of the defendant Samuel, that if William was liable, Samuel was so also. The defendants. again excepted; and a verdict having passed for the plaintiffs, the defendants now move for a new trial on a bill of exceptions.

S. Stevens, for the defendants.

I. Harris, for the plaintiffs.

That obtaining goods by fraud, though in the form of a sale, and though the fraud do not amount to an indictable offence, is a tortious talcing within the issue of non cepit, we have just now held against these defendants. (Carr & Carr v. Hotailing & Hotailing, ante, p. 311.) Also, that in order to establish the charge, other cotemporaneous purchases effected by similar acts of fraud, may be given in evidence. (Id.)

We held in the case cited, that obtaining goods in this manner does not change the general property as between vendor and vendee, unless the vendor elect to consider it as changed. It follows, that Samuel was jointly liable under the issue of non cepit, for his interference With the goods. ■ Indeed, being a partner with William, the fraudulent act of the latter is, in respect to the question of property, imputable to Samuel. It does not lie with one to claim property through the fraudulent act of another, whether as his agent or partner, • without being affected by that act the same as if it were his own. We speak in a civil, not in a criminal sense. The very point was held, as to an agent, in Irving v. Motley, (7 Bing. 543; 5 Moore & Payne, 380, S. C.) And as to a partner in Kilby v. Wilson, (Ryan & Mood. N. P. R. 178.) In Taylor v. Green, (8 Carr. & Payne, 316,) it was held, that where one assuming to be an agent, had committed a fraud in a sale, the mere adoption of the sale and receipt of the money, by the person for

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whom the sale was made, rendered him liable for the fraud, though he was morally innocent.

New trial denied.