Ladd v. Lord & Gillett

Referee's Report. Landlord and Tenant. Partnership. False Representations. Tort. Damages. Practice. Depositions» A report of a referee will not be set aside for any defects which might be cured by amendment. Where a landlord puts a yoke of oxen on his farm for his tenant’s use, and he and his tenant appraise them, and agree that they will share in the profit or loss upon their appraised value,and afterwards agree that the tenant shall sell them at a certain price, which he does, and makes a false representation as-to their soundness, but the landlord affirms the trade and receives the fruit of it; it is held, that both parties are liable'for the wrongful act of the tenant, whether the relation between them be that of partners, joint owners or principal and agent, though the landlord did not know of the unsoundness, or that the tenant made any false representations in respect to them. Where a yoke of oxen were purchased for work and were represented to be sound, but proved to be unsound, and by reason of their unsoundness were worth $25 less for work and $10 less for beef, it is held, that damages, for the larger sum may be recovered. Depositions taken to be used in a case which is referred, need not be filed with the clerk before being opened by the referee or auditor, but the latter should file them as opened.by him.

Action on the case for false representations as to the sound-. of a yoke of oxen. • The case was referred and the referee reported in substance as follows : The defendant Gillett owned a farm in Thetford, Vt., which the defendant, Lord, carried on one year, beginning with the first of March, 1860. Gillett put a yoke of oxen on the farm for Lord to use, at an appraised value of $114, Lord to pay the interest on one half of their appraised value, and both to share in the profit if they sold for more than $114, and in the loss if they sold for less than that sum. Lord had no further interest in the oxen except the right to use them on the farm. In the fall of the year they agreed that the oxen should be sold for $100. Afterwards one of the oxen was lamed while being used by Lord. Gillett was notified of this the same day it 'happened. The fact of the lameness also came to the knowledge of the plaintiff in a day or two after. Soon after this, the plaintiff wishing to buy a good pair of working oxen, called on the defendant, Lord, told him what he wanted, and finally offered $93 for these oxen, but did not then notice any lameness. In a week or two after, he saw Lord, again, and talked with him about purchasing the oxen, and asked him if the ox that was lamed had got over his lameness ; Lord replied that he had ; and the plaintiff bought the oxen and paid $100 for them, believing that the lamed ox had got well. This ox however continued lame, so that the plaintiff could not use Mm, and lie was finally compelled to feed tliem for beef. The referee found that Lord knew the ox was lame when he sold them. He also reported that the oxen were worth $25 less for working oxen by reason of the lameness than if both had been sound, and that they were.worth $10 less for beef, and that if the plaintiff was entitled to recover at all, he should recover the'larger of these sums. Gillett affirmed the trade, and received from Lord the $100 paid for the oxen, but did not know that the ox was lame when sold, or what was said by Lord to the plaintiff, nor did it appear that Gillett knew that Lord made any false representations. The plaintiff offered in evidence the depositions of William Moody and John McClary, which wore objected to on the ground that they had not been filed in the county clerk’s office, but were presented to and opened by the referee at the hearing before him. The refree overruled the objection and admitted the depositions. The case was heard on exceptions by defendant to the report of the referee. The court, January Term, 1863, Peck, J., presiding, overruled the exceptions and rendered judgment for the plaintiff for the larger sum found by the referee. Exceptions by the defendant. The plaintiff is not entitled to judgment against both defendants because they were not partners. Bowman et al. v. Bailey, 10 Vt. 170-; Boardman v. Keeler et al., 2 Vt. 65 ; Stearns v. Haven et al., 16 Vt. 87 ; Tobias v. Blm, 21 Vt. 544. One partner is not liable for the tort of another, Coll, on Part. 225, sec. YI. Lord was not the agent of Gillett 'in selling the oxen. Gillett did not adopt the fraudulent part of the sale, as he did not know the ox was lame when sold, or that Lord committed any fraud in making the sale. If Lord was the agent of Gillett, still Gillett would not be liable for Lord’s torts, unless they came within Ms instructions, or were adopted by Gillett. Judgment cannot be recovered against one and not against both. The declaration is not supported by the poof. Vail v. Strong, 10 Vt.-457 ; Wright V. Geer et al., 6 Vt. 151. . The depositions of Moody and McClary were taken to be used before the county court, and shoiild have been opened by the clerk. But if the plaintiff is entitled to judgment it should be for the smaller sum. The rule of damage in such a case is the difference between what the property is worth as it is, and what it would be if sound. cited to show that the defendants were partners, Brigham v. Dana, 29 Vt. 1; and that being partners, Gillett is bound by the false representations of Lord, although made without his knowledge. Coll, on Part. 241, et seq.; Lark v. S.tearns, 1 Met. 560 ; Boarclman v. Gore et al., 15 Mass. 331 ; Sume v. Bullard, 21 E. C. L. 770 ; Petrie v. Lamont, 41 E. C. L. 58. The referee is an officer of the court and may open depositions as well as the clerk. Brigham v. Abbott, 21 Yt. 455.