No question is made by the defendant’s counsel of the correctness of the doctrine that a principal is liable for the false representations of his agent, although personally innocent of the fraud. It is settled by the clear weight of authority.
But it is contended that the principal and agent cannot be jointly held to answer for a fraud committed by the agent in the course of his agency, in which the principal does not participate ; and that this is decisive against the present action. A question somewhat analogous is discussed in Parson v. Winchell, 5 Cush. 592, where the cases are reviewed and examined.
But we cannot think the principles there laid down are applicable to a case like this. Here the person who made the fraudulent representations was acting, not only as an agent, but also as a principal. In Cook v. Castner, 9 Cush. 266, which was the case of a sale of a vessel by two part owners, and representations made by one of them as to what the other had told him about repairs made upon the vessel, the action was for a deceit in the sale, and the court say, “ He was either so informed by his partner, or he was not. If he was so informed, then the representation was made by Jordan, and bound his partner. If he had not been so informed, then he made a false representation himself, and that bound Jordan.” “ They were joint owners, engaged at the time in the joint undertaking respecting which the representations were made, and they were equally responsible for each other’s statements in regard to it.”
That case seems very much like the present; for there, though the two owners are spoken of as partners, they were partners only, as the facts show, by being co-owners of a vessel, which they joined in selling to another party. So in the present case, the parties were “ sole owners, each of one half ”; but the halves were undivided, and they joined in the sale of them, thus making a sale of the whole.
The action is for the tort, the wrongful act done by the deceit practised in the sale. The damages are not limited to the profit which the vendors or either of them derived from the *590fraud. If one defendant sold only his half, and by himself or his agent committed a fraud in so doing, he would be answerable for the whole injury which the fraud occasioned, although it might exceed the value of the whole vessel. We have, then, the case of two principals sued for false representations made in the sale of property, one acting for himself, and the other acting by an agent. If the agent employed by one had been a third person, there seems to be no doubt that the two principals could be jointly sued. What difference can it make that one of the principals acted as agent of the other? He is joined in the suit, not as agent, but as another principal.
But, farther than this, we think the two owners must be considered as partners in the sale and the fraudulent representations accompanying it; and, upon this ground, are jointly liable. The distinction attempted to be made between that which is done for one part of the chattel and that which is done for the other is rather metaphysical than practical. If two separate owners, each of an undivided half of a carriage, employed the same servant to drive the two halves along a highway, would they not be jointly responsible for his negligence in driving? Yet there it might be said that each employed the man only to drive his separate half. The difficulty is that the careless driving in the one "case, and the making a false representation in the other, is an indivisible act. If there is no joint interest in the fruits of the fraud, that is no objection in the case of a conspiracy, where the parties join in the tort, but each for his several advantage. The defendants joined in the act; the one in his own person, for his own profit; and the other, through his agent, representing and binding him by his conduct and statements. In reference to the particular transaction, namely, -the joining in doing one thing for their mutual benefit, there would seem to be all the elements of a partnership.
Exceptions overruled.