David Brown vs. Joshua Marsh, 8 Vt. 310

The opinion-of the court was delivered, by,- Royce, J.: It .is an ancient and universally admitted principle that fraud will operate to annul a contract,. at the’ election of the party defrauded. And though -in practice it is more usual to seek a remedy founded on the fraud, than to treat-the contract as vacated by it, yet'in cases of gross imposition the latter course has been uniformly sanctioned. There is no occasion, -however, to decide, whether the transaction slated-in the present declaration would, or would not, entitle the plaintiff to disaffirm the sale to Temple.

In either case the question relating to the competency of Temple as a witnéss must receive the ,'sarne answer-. . If, the plaintiff had a right to treat the sale as a nullity ánd if this action is regarded as a manifestation of his purpose so to treat it, then the defendant and Temple become mere tort-feasors, who have wrongr fully' possessed themselves of the plaintiff’s'property. Under such circhmstances the rule is now generally acknowledged, that-Temple would be a competent witness for the' plaintiff or defendant.

It is true that in England, where a recovery against one joint trespasser or wrong-doer is held to be á bar to an action against' his, fellow, even before satisfaction, this "rulé has been sometimes controverted, and is stated by their writers'-on evidence with -some, hesitation. But there is mubhiess ground of'opposition- to it in this state, since we hold that such recovery -is no protection to a participator in the tort, until by satisfaction it has been made pro-ductivé to the party injured. — Caldwell vs. Saunderson, 2 Aik. 195.

It is urged that as Temple had incurred a liability by- contract for tlie whole stipulated price of the’goods, he -was- of course interested to subject the defendant to a recovery in this action,. The objection assumes that such recovery, followed by a satisfaction of the judgment, would extinguish "the'witness’ liability by contract; which, upon the supposition we are now'pursuing,-would indeed be the legitimate result.

In effect the proposition appears to be, that the witness was interested to exchange a sole liability by contract, for a joint and several liability with the defendant in the character of a wrong-doer. It is certain, however, that in the latter character his liability would be as extensive as before, and might be followed by consequences affecting a judgment and execution against him, to which as a debtor by contract he would not be exposed. Fisher vs. The Jail Commissioners, 3 Vt. R. 328. For aught the witness could do, this liability might' be visited upon him with all its legal consequences.

His testimony in this ease would be evidence to subject himself in asimilar action, whenever the plaintiff might choose to institute a suit. Nothing short of a judgment satisfied against the defendant could protect him.- Now it is only a fixed and certain interest which renders a witness incompetent ; whereas the interest of Temple would be manifestly uncertain and contingent, depending on the will of the plaintiff over whom he has no control.

He would but assume the place of every co-trespasser, who is a competent witness for the party injured, not because he is destitute of all- interest, but by reason of this uncertainty of interest. But we are not required to consider'that the plaintiff intended to dissolve the Contract of sale, though he should have had a right to dissolve it. The present is not an action of trover for the goods, nor is the declaration inconsistent with the subsisting obligation of the contract.

In this view of the case it is relieved of all difficulty ; as it also is upon the supposition that the plaintiff was not entitled to avoid the sale. As fraud is said to be extrinsic and collateral to the contract or proceeding in' which it is practiced, so an action of this kind founded on the deceit, and not brought in avoidance of the contract, is wholly a collateral remedy. The plaintiff may recover more or less, according to the extent of his injury from the fraud complained of, and still retain bis remedies unimpaired on the contract itself.

It follows that Temple was not legally interested in this collateral action against the defendant, since his own liability under the contract could not be affected by it. The case most analogous to the present is that of a false and fraudulent representation of another’s property and circumstances, made to enable him to gain credit. And there it is held that the person whose solvency was misrepresented is a legal witness to prove the fraud. — 2 Stark. Ev. 410, and cases there cited. The reason assigned- is, that the witness cannot, in an ac- • tion for the price of the goods avail himself of the verdict.

Be tween such a case and the present it is not perceived that any ma- ....... terial distinction exists. The fact that Temple was the chief agent in conducting the fraudulent transaction, though it should reflect strongly upon his credit, does not render him the less admissible as a witness; the doctrine being established that a party to a fraud is competent to prove it. The jndgment of the county court reversed, and new trial granted.