#### JOHN C. PETTIJOHN v. HENRY WILLIAMS.

Where the executor of one tenant in common, authorised to sell a fishery, takes along -with him the other tenant, and refers the purchaser to him as one acquainted with the proper.y, and such .tenant commits a fraud in his representations of the qualities and condition of the fishery, such executor is personaliy liable for the fraud.

ACTION in the case tried !before Judge Ellis, at Fall Term, 1858, of Chowan.Superior Court.

The plaintiff declared for a deceit, by fraudulent misrepresentations in the sale of a small piece of land, on Croa-tan Sound, used as a landing for seins used in fishing in the adjacent waters of the Sound, and .the alleged deceit was, first, in representing that there were only seven stumps in the .adjacent scope of waters constituting the fishery, whereas there were two thousand stumps, hangs and obstructions, .and the defendants well knew it

The land had been owned by the .defendant Melson, and one "Whitley, who fished there in the years 1846, ’47, ’48, and in 1849. Whitley died, leaving the other defendant, Williams, his executory who was .empowered by the will to make sale of this fishery. - -

Advertisement had .been made to sell the same"at auction, at Edenton, but having failed thus to make sale, the defendants went together, on their return home, to' the house of plaintiff, in the town of Plymouth, in Martin county, where the representations complained of were .made, and a sale to the plaintiff for $3,000 was executed. Upon the pointmf the deceitful representation, .the evidence adduced on the .trial was as follows.;

One Nixon testified th.at defendant, Melson, said to the ¡plaintiff, in .the presence .of the other defendant, that there ■were in the sein ground .but three stumps or not more than :fiyq, and that three of them were staked.so that it could be *146seen where they were, and that eight men could remove all the obstructions in twenty-four hours. That Williams was present at the time, but did not, in his hearing;make any statement about the stumps or obstructions.

One Brown stated, that he heard jthe defendant Melson say to the plaintiff, in the presence of Williams, that, there were but three or four stumps in the sein ground; that they were near the shore, and might be cleared out at an expense of forty dollars; that Williams was present, and made no statement about the number of stumps.

One Fagan testified,-that he heard the defendant Williams refer the plaintiff to Melson for information, as to the obstructions in the fishery, and Melson said, in the presence of Williams, that there were but few hangs in the fishing ground and they could be easily removed; that there was-a bunch of stumps or hangs in the lower corner, which did not interfere with the sein, unless it drifted out of the usixal course, by the force of the winds and tides.

Fagan also stated, that, on the day before this conversation, he heard Williams tell plaintiff that the fishery was clear, or that Melson said'it was clear; that Melson had cleared it, but that he, Williams, had no personal knowledge of the condition of the fishery in that respect, but that he had brought Melson with him to tell its condition; that Mel-son was not then present.

There was evidence on both sides as to the condition of the fishery; but, as the jury found the defendant Melson guilty, it is not thought necessary to enter into a detail of it.

. The plaintiff insisted that Melson had made a false representation, and that Williams was bound by it,-because Mel-son acted as his agent in making thq misrepsentation, and this, although Williams was ignorant on the subject, and did. not know Melson’s statements were false.

The Court charged the jury, that,- however this might be, had Williams appointed Melson his agent to sell the proper*147ty, there was no such evidence here of agency, and that, if the reference by Williams to Melson,t of the plaintiff, for a description and representation of the character ■of the property, proceeded from an ignorance on his part, of its true condition, and was made in good faith, and he was innocent of any fraudulent collusion with Melson, and knew not that his representations were false, he would not be liable; that his liability depended upon false representations made by himself, or an acquiescence in such as - were made by Melson, knowing, at the time, that they were false.

The verdict was in favor of the plaintiff for $1,500, ¡against Melson only, and in favor of Williams.

Plaintiff moved for a *venire de*novo, for error in the instruction of the Court. Motion refused, and appeal to this -Court.

*Heath and Bragg,*for plaintiff.

*Smith,*for defendant.

Pearson, *J.*

It is established by the verdict, that the representations made by Melson, in regard to the property, were false, and he knew them to be so: and, that although Williams did not at the time know them to be false, yet, by moans of these falsehoods, he and Melson were enabled to sell the property to the plaintiff for greatly more than it was worth: and the point in the case was, after Williams found out that the plaintiff had been cheated, could he retain the part of 'the spoils that had fallen to his lot, in the -division with Melson, 'without becoming, in contemplation of law, also liable for the fraud that had been practiced — atleast to the extent of his rateable part of the damage — so as to make the difference between the two consist in this: that the •perpetrator was liable for the whole, the other to the extent of his participation in the spoils ? •

*148His -Honor misconceived the case, and made it turn upon the point that there was no evidence that Williams had appointed hjelson his agent to sell the property: Whereas, there was pregnant proof that he had made him his agent, to assist irán in making the sale, by referring to him as one who was well acquainted with the property, and could 'give all necessary information in regard to it. The witness Fagan swore ' that he had told him, that he brought Melson with him to tell the condition of the property, and all the witnesses concur in saying that he referred the plaintiff to Melson, who would answer all inquiries, and it is evident, that the plaintiff was induced to rely upon .the information thus received, and close the treaty.

It can make no sort of difference, whether he was his agent to do the whole business connected with the sale, or only to do a part of it. If you, having a horse to sell, get one man to ride him up and down the street, to show his parts, and another to act as auctioneer to see udio will give the most for him, and another to act as clerk and set down the bid, they are all your agents, as to the parts assigned to them, '(they act for you and in your stead, which is the true definition of an agent), although you reserve to yourself the part of receiving the money, and making a bill of sale, and of delivering the article to the purchaser. So, if you advertise a tract of land, and refer persons who may wish to buy, to A B, who is well acquainted with the land, and will go upon it with them and she-wthe boundaries, &c., does it need the authority of decided -cases to show that he is your agent, and that if he makes a wilful misrepresentation, and points out land as belonging to the tract, which, in fact, it does not include, and thereby enables you to sell it at an.extravagant price, that you can, after notice of the fraud, which he has practiced, insist upon keeping .the whole price, and take the benefit of his falsehood, without .being guilty of a fraud, as we)l hi !a,w as ip morals.? Ban a *149man, lawfully, do that by another which he cannot do himself *l*Just as soon as you showed a disposition to hold on to your ill-gotten gains, every honest man would exclaim, “you are just as guilty of a fraud as the vile instrument you made use of.”

This plain principle of law and common honesty is appa-parently conceded by his Honor, and the error is in putting the case on a supposed distinction between an agency to sell out and out, and an agency to do some part only of what is necessary to affect a- sale. We find no such distinction in the books, and the principle is settled generally, that a vendor is bound' for the fraud, of' his agent, in- effecting a sale: in fact, the principle is settled as to all agencies. Comfort v. Fowke, Meeson and Welsby, 373. Although the Judges, differ in opinion as to the point in the cáse before them, tney all take it as settled law, that a principal is bound for the fraud of his agent. Park B. says: “ I concede that, if one employ another to make a contract, and that agent, though the principal be *perfectly guiltless,*knowingly commit a fraud in making it, not only is the contract void, but the principal is liable to an action.” Lord Abinger, C.B., who dissented, says: “ I own it never occurred to me, to doubt, upon principié, or upon the authority of decided cases, that the knowledge of; the principal was the knowledge of the agent, and the. knowledge of the agent the knowledge of the principal.”

There is one case so fully in point with the. present, that, although unnecessary, we are tempted to cite it.. Maynard v. Rhode, 11 Eng. C. L. R. 419. Plaintiff had effected an insurance upon the life of Col. Lyon, of whom the- plaintiff was ah annuity creditor. In making the insurance, the plaintiff referred the companyto Col. Lyon for information as to his health: the Colonel did not make a true statement. The Court say, however hard it may be on the plaintiff, the rules of law must be adhered to: so that, *150though entirely innocent, he lost the benefit of the policy, on account of the misrepresentation of the Colonel, to whom he had referred the company for information.

Allusion was made, upon the argument, to the fact, that Williams sold under a power given to him as executor. That does not vary the case. We presume that, in settling with his *cestui que*trust, he will only be charged with the real value of the property; but, be that as it may, he was not at liberty to commit a fraud in law, for his own benefit or for that of others.

It is only necessary to say that the variances pointed out by the plaintiff are immaterial.

The plaintiff is entitled to a *venire de novo,*as to the defendant Williams. He does not ask one as to Melson, who did not appeal.

Judgment reversed-