Anderson v. Scott , 70 N.H. 350 ( 1900 )

One ground of the defendants' exception was that testimony was introduced from which the jury could properly find that their subscriptions were obtained through fraud. It did not appear that Towner had authority to act for the plaintiffs in soliciting the subscriptions, but a ratification is equivalent to previous authority (Clough v. Davis, 9 N.H. 500, 502; Davis v. School District, 44 N.H. 398, 407; Springfield v. Drake, 58 N.H. 19, 21; O'Neil v. Dunn, 63 N.H. 393, 395), and the bringing of these suits upon the subscriptions obtained by him was a ratification of his acts in obtaining them. Such ratification extended to every act which was instrumental in causing a member to subscribe; for in the adoption of his agency the plaintiffs were bound to take the burden with the benefit. Ball v. Badger,6 N.H. 405, 410; Hovey v. Blanchard, 13 N.H. 145, 149; Patten v. Insurance Co., 40 N.H. 375, 381; Presby v. Parker, 56 N.H. 409, 413. If any of the subscriptions were induced by fraud, the fraud became the plaintiffs', and could be set up by the subscriber as a defence in a suit against him on his contract of membership.

The evidence tended to prove that Towner, in order to induce the defendants to subscribe, falsely represented that the "Nashua Telegraph" had been purchased for the company and the Associated Press reports secured for the paper, and that the defendants' subscriptions were obtained on the strength of these representations. If such representations were made, they were not mere statements of opinion, judgment, probability, or expectation, nor were they vague and indefinite in their terms. Messer v. Smyth,59 N.H. 41, 43; Shattuck v. Robbins, 68 N.H. 565. They were material affirmations of past occurrences which Towner knew to be false, or did not know to be true, — occurrences that were not equally within the knowledge of the defendants. Hoitt v. Holcomb, 23 N.H. 535, 554.

The plaintiffs' exception to this testimony, upon the ground that it tended to vary or contradict the terms of a written instrument, is not well founded. The evidence was not introduced for this purpose, nor did it tend to have this effect. The purpose was to show that the contract was induced by fraudulent means and was voidable. The testimony was competent for this purpose. Patten v. Insurance Co., 40 N.H. 375, 380.

As the defendants' exception must be sustained, it is unnecessary to consider whether the plaintiffs have such an interest in the subject-matter as to entitle them to maintain the suits; and whether the entire capital stock of the corporation was fully subscribed. The facts reported are insufficient for forming an intelligent judgment upon these questions.

Plaintiffs' exception overruled: defendants' exception sustained: verdict set aside.

PARSONS, PEASLEE, and YOUNG, JJ., did not sit: the others concurred.