This case comes before us upon a report ofreferees —and by the established 'practice in such cases the report will not be set aside for any defects which might be cured by amendment. It is the object of the parties in selecting such a tribunal to try the merits of their controversy. Hence the question of variance may be passed by without further comment.
The real question is whether both of these defendants can be held liable upon the facts reported.
"VYe do not deem it necessary to inquire what the relation between-these parties was — whether thatof partners, jointowners, or principal and agent. For if it was either of these we think both would be liable. As to the liability of the defendant Lord, there seems but little opportunity to question it. He had some interest in the property sold, a community of profit or loss and made the fraudulent representation. It is sought to relieve Gillett on the ground that he was not privy to the fraud, did not 'not know of it or have anything to do with it. '
But he owned an interest in the oxen, and whether partner, joint owner or principal, he authorized Lord to sell them; — for *198this particular transaction, gave hint all the authority that a general agent ■would have had.
Nor is this all. After knowing of the trade he has affirmed it and received the fruits of it. The increased price obtained by the fraud has in fact all of it gone -into his pocket.
The rule as to partners, is this, if the tort is done in the business of the firm, in the due course of its dealings, and it is the business of the firm that gives the opportunity for the wrong-inflicted, then the firm is liable ; and especially is this the case where the other partner has affirmed the contract, and has received the benefit of the wrongful act, 1 Parsons on Cont. p. 162 ; Coll, on Part. p. 242.
As to fraudulent representations in 'the sale of partnership property, the authorities all concur in holding the firm liable for the wrongful act of a single partner. So if we regard ’Gillett as the principal and Lord as agent in the sale of the oxen, the result must be the same. He was acting within the scope of his authoity in selling the oxen. The sale has been affirmed by the principal, and he has received the avails of the fraud.
For fraudulent representations of the agent causing injury to an innocent person, the principal is responsible. He holds him out as one whose representations may be relied upon in the matter of his agency, and if they prove false he must make them good. Paley on Agency, 197 et seq.; 1 Pars, on Cont. 63 ; 13 Wend. 518 ; Fitzsimmons v. Joslin, 21 Vt, 129
Nor is the liability for the fraud alone upon the contract,— case lies against the partner or agent for the deceit. The rule of damages was right. The report finds in substance, that if sound they would have sold as working oxen for $25 more than they were worth to the plaintiff as they were.
The depositions need not be filed with the clerk before being opened by the referee or auditor when taken to be used in such a case. We think the universal practice has been in such cases, to produce them before the referee or auditor. He then opens them and should file them as opened by him. He is an officer of court and producing them before him is bringing them into court.
The judgment of the county court is affirmed.