The opinion of the Court was by
Emery J.The note in this case was dated August 22, 1835, signed by the defendants, payable in one year from date to Benjamin Carr, or order, by him indorsed, “ without recourse.” The *406writ in the suit bears date the 4th of March, 1837. From the case as stated in the exceptions, it may be concluded, that Carr, Whittier & Brown were jointly interested in the land for which the note in question was given; that Carr sold the land on the joint account of the three and as their agent; that in the winter of 1836-7, the note was indorsed by Carr, but not delivered to the plaintiff till after this action was commenced. Nothing then in the evidence contradicts the inference that the note was in Carr's possession until after this prosecution was instituted.
Whatever was said by Carr during that period, or cotemporary with his possession of the note, would be evidence. Collenridge v. Farquharson, 1 Stark. Cases, 201, (Exeter Ed.)
Fraud will vitiate a contract, although the principal take no part in it, for he is civilly responsible for the acts of his agents. And the agent’s sayings within the scope of his authority, whether true or false, are just as binding on the principal as if they had been actually made by him. 2 Stark. Ed. 60; Doe v. Martin & al., 4 T. R. 39. In cases where partners and others possess a community of interest in a particular subject, not only the act and agreement, but the declaration of one in respect of that subject matter, is evidence against the rest. Whatever might be said as to the proof of the admissions of Carr, had nothing more occurred in the trial, every objection on that score, is entirely done away with, by the introduction of Carr himself, as a witness, who was fully examined as to the whole transaction. He denied that he made some of the material admissions after the sale, or such representations at the time of the sale, or that the plaintiff had ever so represented to him. Yet the whole evidence went to the jury. And we must conclude from their verdict upon the evidence, that they found that Carr made fraudulent representations to induce the defendants to purchase the land; that Carr was by the three, authorized to effect the sale; and they adopted it.
The false representations are not made true by the commencement of an action against Carr for recovery of damages on account of the defendants having been induced by those representations to make the purchase. That action might have been a precautionary measure to protect themselves against the consequences of giving the notes, when they might not be satisfied with the *407strength of the proof of which they were informed, they could bring forth to connect the plaintiff with the transaction. It is still pending. It may never go to judgment. But the remedy for making false representations, if made fraudulently with intent to deceive, and damage ensue, will lie against a person not interested in the property, as well as if he were owner. The pursuit of such a remedy is not necessarily an affirmance of the contract. It might rather go to shew that no confirmation ought to be made. The damages in such an action might possibly be affected in some measure by the success of an entire defence against the notes given. A party may have a defence against a claim upon a contract on the ground of fraud upon him; but this could not constitute an answer to his action upon the contract, for a party cannot avail himself of his own wrong.
We cannot say the Judge was wrong in declining to give the requested instruction on that point.
The subject of the offer by the defendant to rescind the contract prior to the commencement of the suit, was left to tlie jury upon the evidence. As a formal tender may be excused by the declarations or other acts of a creditor, tbe question, whether there has been an offer and refusal, arc questions for the determination of a jury. Warren v. Mains, 7 Johns. R. 476; Coit v. Houston, 3 Johns. Cas. 243.
Upon a review of the circumstances developed, we are not satisfied, that we ought to send the case to a new trial, as what is stated, leads us to the belief, that substantial justice has been done by the verdict. The plaintiff can avail himself of the deed which is left on file, if he chooses to do so on the terms upon which it was deposited.
'Exceptions overruled.