A tenant in common, without joining his co-tenant in the action, may recover of a purchaser the price of his undivided part of the common property.
The declarations of an agent authorized to purchase property, made by him while acting as agent of the vendee in negotiations for a settlement with the vendor, are regarded as connected with and as forming a part of the business of his agency, and will bind his principal.
FOSTER, J.
The plaintiff contracted with the defendants for the sale of his own property in all the wood upon a certain lot of land; and for all the property and interest of the plaintiff thus acquired by the defendants they are liable under the contract. They purchased the plaintiff's half, as well that which was undivided as that which had been separated, at an agreed price by the cord, for the quantity, when ascertained.
A tenant in common may convey title, by sale, to so much of the common property as he owns. Without the authority of his co-tenant he can sell no more.
Nutter did not sell his undivided half to the defendants, and need not be joined as plaintiff. By the defendants' purchase of the plaintiff's undivided half, they became liable to him alone for the price of that half (White v. Brooks, 43 N.H. 402, 407), although they supposed they bought the whole of him.
The letter and statements of Perkins were declarations made by him while acting as agent of the defendants in negotiations for a settlement with the plaintiff.
"The ground upon which the acts or declarations of an agent are admitted in evidence to bind his principal is, that the agent has, directly or by reasonable implication from the nature of the business he is charged with, the instructions of his principal to perform those acts or to make those declarations; that they form a part of the business he is employed to transact: — as, where an agent is employed to settle with laborers, his admission that a sum is due to one of them is evidence against his principal that such is the fact. 2 Stark. Ev. 57. Such an admission results fairly from the exigencies of the business the agent is employed to transact, and is clearly a part of it, and, to every intent, the act of the principal himself." Batchelder v. Emery 20 N.H. 165, 166; Glidden v. Unity, 33 N.H. 571, 578, 579; Morse v. Conn. R. R. Co., 6 Gray 450; Story on Agency, s. 138.
Judgment on the verdict.
STANLEY, J. did not sit.