Pendergast v. Reed

Miller, J., delivered the opinion of the court. By the first exception it appears that after the testimony was closed, and before the case was given to the jury, the ^'proceedings were allowed to be amended by striking out the name of one of the two defendants, against whom the suit was brought, and leaving it to stand against the other. No objection to this action of the court has been made by the appellant’s counsel in argument, and it is fully authorized by the provisions of the Code, Art. 75, sec. 23, 27, 28. At the trial the plaintiff stated that he relied solely upon, and confined his right to recover against the appellant, to the fifth count of his declaration, and the case has been argued here as if the declaration was against the appellant alone, and ⁴⁰⁴ contained only that count.

So considered, the declaration avers, in substance, that the defendant was part owner of a vessel called the “ Cumberland,” and authorized to appoint her master; that the plaintiff applied for this appointment, and the defendant agreed to appoint him in consideration that he would take an eighth interest in the vessel, at the cost price thereof, in order to insure the greater care and diligence on his part in the discharge of his duties as master; that the defendant falsely and fraudulently, and with intent to injure and deceive the plaintiff, represented the cost price of the vessel to have been $34,000, and required the plaintiff to pay him one-eighth of that sum for one-eighth interest in the vessel, in consideration for receiving said appointment as master; that not knowing the defendant had falsely and fraudulently represented the cost price of the vessel to be greater than it really was, the plaintiff agreed to the terms proposed by the defendant, and in pursuance of this agreement, paid him $4,250, one-eighth of said alleged cost price, and was thereupon appointed master; that the cost price of the vessel was not $34,000, but only $25,500, which the- defendant well knew at the time he made said false and fraudulent representation to the plaintiff, and at the time he received from him the $4,250, and by means of said false and fraudulent representation the plaintiff was injured, and hath sustained damage, &c. A good ground of action is here set out. It is not simply the case of a false affirmation by a vendor, concerning the *value of the thing sold, where information on the subject was easily within the reach of the vendee, and where the law would regard it the folly of the latter to credit the assertion, but of a false representation of a material fact known to the defendant, and by means of which the plaintiff was induced to part with his money. The very essence of the contract here stated, was a purchase for certain considerations of one-eighth of the vessel at its cost price to the defendant, and a false representation of this price, inducing the plaintiff to buy worked an injury to him for which he is entitled to recover, even if the actual value of the share purchased, equalled or exceeded what it would have been, had the representation been true.

He had the right to all the profits of his purchase and contract as he made it, and it is no answer to his action to say, that though ⁴⁰⁵ the representation was false,