Evans v. Freeman

Citations

• 140 F. 419
• 1905 U.S. App. LEXIS 4801

Syllabus

<p>1. Conspiracy — Action—Recovery against One Alone.</p> <p>In an action to recover the value of property alleged to have been obtained from plaintiff by false representations against the vendee and plaintiff’s agent in the transaction, who are alleged to have known the facts and conspired to cheat the plaintiff, the conspiracy is the foundation of the right of action, since without it the agent’s knowledge would bind his principal, and a verdict against the vendee alone cannot be sustained.</p> <p>On Rehearing.</p> <p>2. New Trial — Construction op Order — Correction op. Record Nunc Pro Tunc.</p> <p>In an action against two defendants, based on a charge of conspiracy between them to defraud plaintiff, a verdict was returned against one, and on his motion an order was entered at the same term granting a new trial, on the ground that under the issues there could not be a recovery against one alone. Prior to the entry of such order the attorney for the other defendant, without the knowledge of the court, had procured the entry of a judgment in his favor on the verdict. Held, that the effect of the court’s order was to set aside the verdict and grant a new trial as to both defendants, and incidentally to vacate the judgment improperly entered, and that the court had power at a subsequent term by a nunc pro tunc order to correct its record, so as to show such vacation in terms.</p>