
    Albert H. W. Cook & another vs. Frederic Castner & another. William Jordan & another vs. Joseph D. Farren & another.
    Tf a plaintiff excepts to the ruling of the judge, and afterwards amends his declaration changing the form of the action, and the issue to be tried, and the defendant obtains a verdict on the merits, the exception taken is no longer open to the plaintiff.
    A shipwright who has examined a decayed vessel may give his opinion, founded on the condition of the timbers at the time of his examination, whether a person could have removed a part of the “ thick streak” some months before, without discovering that the timber under it was decayed.
    The general rule, that, where one makes a statement as received from another, and refers directly to that other, the former is not bound for the truth of the facts thus stated, is not applicable to the case of partners who are responsible for each other’s statements in regard to their joint transactions.
    In two cross-actions tried together, one for the price of property sold, and the other for fraud in the vendor, the jury, if they find the fraud, and that the damages equalled or exceeded the purchase-money, may render a verdict for the defendant in the first action, and for the plaintiff in the second action for the excess of such damages, if any, over the purchase-money. If the damage is less than the price sued for, it should go in reduction of the price in the first action, and the verdict should be for the defendant in the second action.
    Partiality and misconduct of a juror in the jury-room cannot be shown by the testimony of the juror himself or of the other jurors.
    It is not every mere cause of challenge, which, if made at the time, would set aside a juror, which is sufficient ground, afterwards, to set aside the verdict.
    These were two cross-actions between the same parties, and arising out of the same transaction.
    The first was an action of assumpsit with the money counts, to recover back the purchase-money of the barque Averon, sold by the defendants to the plaintiffs.
    At the sale there was no warranty, but the sale was made under representations as to the condition of the timbers and fastenings of the vessel. After the sale, the plaintiffs had the vessel examined, when they found some of the timbers unsound ; they attempted to repair these, and, in doing so, made further discoveries as to the condition of the timbers and fastenings, and immediately offered to return the vessel to the defendants.
    At the trial, in the court of common pleas, the plaintiffs introduced evidence that, with the defendants’ knowledge, they bought on the faith of these representations; that the representations were materially false, and were known to be so by the defendants at the time they were made.
    The defendants refused to receive the vessel, and contended that this action would not lie, inasmuch as the mechanics employed by the plaintiffs to make repairs, after the sale, had a lien on the vessel for their labor, at the time of the return, by force of the statute of 1848, c. 290. The plaintiffs admitted that such lien existed by law, but offered to prove that the labor of the mechanics was for the purpose of putting the vessel in the condition in which she was fraudulently represented to be at the time of the sale; that this work was stopped, as soon as the extent of the defects was ascertained ; that the plaintiffs employed the mechanics on a personal contract only, and were personally liable to them for their charges; that no lien or security on the vessel was given in terms, or alluded to in the contract between the plaintiffs and the mechanics ; that the plaintiffs had not refused to pay the bills of the mechanics, nor had the mechanics demanded payment of their bills of either party, or made any attempt or offer to enforce their lien, at the time of the offer to return. It further appeared that, after the offer to return, the plaintiffs did no further acts of ownership, and the mechanics libelled the vessel in admiralty, to enforce their lien, and the vessel was sold by a decree of that court, neither of the parties to this suit appearing as claimants.
    The presiding judge, Wells, C. J., ruled that, under no state of the evidence, could the plaintiffs return the vessel and maintain this action, if the mechanics, at the time of the return, had, in fact, a lien on the vessel, which they had a legal right to enforce. To this ruling the plaintiffs excepted.
    Afterwards, the plaintiffs amended their declaration, by altering their action to an action for deceit, in which the verdict was for the defendants on the merits.
    The second of these actions was assumpsit, brought to recover the balance (part having been paid in cash) of the purchase-money of the barque Averon, sold by the plaintiffs to the defendants, in Boston, on the 20th of February, 1849, under a written agreement of that date. It was tried with the former action.
    The defendants pleaded the general issue, and filed a specification of defence, alleging, 1st, a warranty of the soundness and thorough fastening of the vessel, and a breach of the warranty ; 2d, fraudulent misrepresentations in regard to the condition, soundness, and fastenings of the vessel; 3d, that the vessel was worth less than the defendants had already paid for her, and they had abandoned the purchase and returned her to the plaintiffs.
    The plaintiffs proved the agreement and sale, and rested their case.
    The defendants introduced the evidence of the broker who negotiated the sale on the part of the defendants, to show the circumstances of the sale and the representations made. Among other representations, there was evidence that Cast ner, one of the owners, and agent of the others, and ship’s husband, stated, prior to the sale, that Jordan, a co-owner, told him that he had examined, repaired, and bored the vessel, fifteen months previously, and found her sound; and that, at the time of the repairing, he had put in a new piece of the thick streak; but of which Castner knew nothing of his own knowledge, and referred them to Jordan, then in Boston.
    The defendants next called Enos Holbrook, a shipwright, who was employed by the defendants, at the time of their purchase, to repair the vessel in Boston, and fit her for a voyage to California; and he testified to the general defective state of the vessel. The defendants asked the witness, whether, in his opinion, judging from the condition of the timbers, as seen by him, in March, 1849, it would be possible for a man to have taken off a piece of the thi.ck streak and replaced it with new, fifteen months before, without discovering that the timbers under it were decayed. The plaintiffs objected to the competency of the question, but it was admitted by the judge, on‘the ground that it was a proper question to an expert. To this ruling the plaintiffs excepted.
    The defendants having introduced the above evidence, that Castner represented that Jordan had informed him that he had examined, bored, and repaired the vessel, fifteen months prior to the sale, but of which he knew nothing of his own knowledge, and having shown that Castner, at the time of making the statement, had referred them to Jordan, who was then in town; and it being proved that the defendants, thereupon and prior to the purchase, had an interview with Jordan, the plaintiffs requested the judge to instruct the jury, that the burden of proof was on the defendants, to satisfy the jury, 1st, that Jordan made the statements alleged by Castner to have been made; 2d, that the statements, if any, made by Jordan, were fraudulent. The plaintiffs also requested the judge to instruct the jury that, when Castner, one joint-owner, and the agent of the others, innocently states a fact not of his own knowledge, and as told to him by Jordan, another joint-owner, and, at the same time, refers the party to Jordan, who is thereupon seen by them, Castner is not responsible for the truth of such fact.
    • On these points, the judge instructed the jury, that, if •Jordan had not made these statements to Castner, Castner was guilty of a fraud in stating to the defendants that he had made them, but that the legal presumption was that Castner told the truth, when he stated that Jordan had made these representations; that, if the jury were satisfied that Jordan made these representations, it was for them to determine, from the evidence, whether the representations were false and fraudulent, or not, and that the burden of proving the fraud was on the defendants.
    The judge further instructed the jury that if Jordan, being part-owner of the vessel, employed Castner to sell her, and made these representations to him, and authorized him to repeat them to persons treating for the purchase of the vessel, and Castner, acting on this authority, did make these representations to the defendants, as an inducement for them to make the purchase, the plaintiffs were, in law, responsible for their representations so made and repeated, in the same way as if they had been made directly by Jordan to the defendants, 
      although Castner was innocent of any fraudulent intent, and believed that Jordan’s representations were true.
    The judge further instructed the jury that if, at the inter ■view between Jordan and the defendants, Jordan made a correct representation of the appearance of the vessel at the time of her repair, the plaintiffs would not be affected .by the statements of Castner.
    The law of fraud, as applicable to this case, was fully laid down by the judge, and the instructions on this head were not objected to by the plaintiffs.
    The defendants having brought a cross action on the case, for deceit in the sale of the vessel, to recover damages, the plaintiffs objected to any evidence being given in this suit, to avoid the contract, or reduce the damages on the ground of fraud, contending that the defendants were not entitled to avoid the contract or reduce the damages in that action, and also sustain their cross action, but must elect one or the other remedy. But the judge ruled that the defendants might give such evidence in the plaintiffs’ action, to avoid the contract, or reduce the amount claimed by the plaintiffs to the extent of that amount; and that, if the damages sustained by the defendants, by the fraud and misrepresentations, exceeded that sum, the defendants might recover such excess in their cross action ; but, by setting up this defence, they precluded themselves from recovering any thing but such excess in their action.
    To this ruling the plaintiffs excepted.
    The jury found a verdict for the defendants, and the plain tiffs moved for a new trial, for the following reasons, to wit:—
    1st. Because Mr. Ballard, one of the jurors by whom the verdict therein was rendered, had, prior to the time of the trial, examined the barque Averon, the subject of that suit, about the time of'her abandonment by the defendants, and had then formed an opinion of the condition of the vessel at the time of her sale to the defendants, and was not an unprejudiced and unbiased juror, and was thereby rendered incompetent as a juror in the cause.
    
      2d. Because Ballard, after the cause was committed to the jury, and before the verdict, stated to his fellow-jurors, not in the presence of the judge, and not as a witness under oath, that he had “ examined the vessel and knew all about her • that she was more rotten than she was proved to be at the trial, and that she was rotten throughout; that he would bet five hundred dollars that, if she were opened now, it would be found that she was rotten in places where one of the plaintiffs’ deponents said he had found her sound’when he repaired her; for he, Ballard, saw rot in those places when he looked at her.”
    All which matters and things were unknown to the plaintiffs until after the verdict was rendered; whereby the plain tiffs were prejudiced, and suffered manifest wrong and injury by the improper conduct of the juror. And the plaintiffs prayed that the verdict in the cause might be set aside, and a new trial ordered.
    On the hearing of this motion, the plaintiffs offered to prove, by Ballard and by the foreman of the jury, the truth of the facts stated in the motion for a new trial, in respect of Ballard; but the presiding judge ruled that the testimony of these witnesses could not be received; that the jurors were not competent witnesses to prove the facts stated in the plaintiffs’ motion for a new trial, it appearing that the plaintiffs proposed proving that these statements were made while the jury were together, deliberating upon the verdict they should render.
    To this ruling the plaintiffs excepted.
    
      W. Delion, for the plaintiffs, in the second, and the defendants in the first action,
    cited Jameson v. Drinkald, 12 Moore, 148; Sills v. Brown, 9 Carr. & P. 601; Jefferson Insurance Co. v. Cotheal, 7 Wend. 72; Farar v. Warfield, 8 Martin, (N. S.) (20 La. R.) 695; Harger v. Edmonds, 4 Barb. R. 256 ; Stone v. Denny, 4 Met. 151.
    
      R. H. Dana, Jr., for the defendants, in the second, and the plaintiffs in the first action,
    cited Bridge v. Eggleston, 12 Mass. 245; Dorr v. Fenno, 12 Pick. 521; Hannum v. Belchertown, 10 Pick. 311; Murdock v. Sumner, 22 Pick. 156; Meade v 
      
      Smith, 13 Conn. 346; Clugage v. Swam,, 4 Binney, 150 ; Clum v. Smith, 5 Kill, 560 ; Brownell v. McEwen, 5 Denio, 167, Tenny v. Evans, 1U N. H. 462; Erase v. Delaval, 1 T. R. 11 Owen v. T'Pcw&Wj rawi, 1 New Rep. 326.
    The plaintiffs cannot prove the bias of a juror, if they failed to interrogate Mm on the voir dire. Commonwealth v. Flanagan, 7 W. & S. 415 ; Simpson v. Pitman, 13 Ohio, 365; Billis v. The Staie, 2 McCord, 12; Vennum v. Harwood, 1 Gilman, 659.
   Shaw, C. J.

There two cases, as we understand, are cross actions between the same parties, although the names and titles of the causes aie different, being controversies arising out of the same transaction, the purchase and sale of a vessel, called the barque Averon, in whicn Castner and Jordan were the vendors, and Cook and Farren the purchasers. They were both tried together, and went to the same jury, and verdicts in both were rendered at the same time.

The first was a suit brought by Cook and Farren, the buyers of the vessel, to recover back part of the purchase-money, paid in cash as part of the price, on the ground that, by means of false representations made by the defendants, the plaintiffs had been deceived, in consequence of which they claimed a right to rescind the contract, as well to exempt "themselves from the payment of the residue of the purchase-money, as to recover back that part of the purchase-money which had been paid ; and the plaintiffs insisted that, in the ' exercise of this right to rescind, they had offered to return the vessel to the defendants.

The defendants objected to tMs offer, if, in other respects, the buyers had a right to return the vessel and rescind the contract, because, as they alleged, before this offer was made, the vessel had become chargeable with a lien to workmen and material men, for labor and materials in making repairs, and, therefore, that the defendants were not bound to take back the vessel, till this burden was removed. The judge, on the trial, decided this point in favor of the defendants, to which the plaintiffs excepted. In point of fact, it appeared that, when this offer of the plaintiffs to return the vessel, and the refusal of the defendants to accept such offer, were made, the mechanics had libelled the vessel in the admiralty for these repairs, and, neither of the parties appearing to claim the vessel, they had a decree for a sale.

After this decision of the judge, in regard to the lien of mechanics, and holding that, there being such a Hen, created by the acts of the defendants, the plaintiffs could not return the vessel and rescind the contract until it was removed, the plaintiffs obtained leave to amend, and amended their declaration, so that, instead of assumpsit to recover money paid on a consideration which had failed, it was changed to an action on the case for a deceit, in making sale of the vessel under false representations. Upon that issue, the defendants had a verdict on the merits.

The plaintiffs now propose to sustain their exceptions, taken before the amendment, and show, either that the mechanics had no Ken on the vessel, or that, if they had, it did not prevent their offer to return the vessel from being sufficient. But it seems obvious that, by changing the form of action and changing the issue, that direction, whether right or wrong, has become immaterial. The plaintiffs voluntarily changed their form of action, and placed their case on the ground on which they chose to try it. The first action went on the ground of rescinding the contract, disaffirming the contract, and recovering 'back part of the consideration, to which a restoration of the vessel was necessary. The action, after the amendment, was one for a deceit in the sale, for damages caused by the deceit, the plaintiffs, as vendees, retaining the vessel as their own property. This exception, therefore, is not now open for the plaintiffs.

The second action between the same parties was brought to recover about $7,000, the balancé of the purchase-money for the barque Averon, sold by the plaintiffs to the defendants, a part of the purchase-money having been paid at the time, and being the subject of the cross action just disposed of. The action was defended, on the ground that the vessel was sold under a warranty or representation of soundness, which Was false.

No warranty was proved, and the ca'se went to the jury upon evidence of false representation, by which the defendants were deceived.

1. The first exception taken by the plaintiffs, and it is equally applicable to both cases, was founded on the admission of a question to Holbrook, who was employed by the defendants to repair the vessel, soon after the sale to them, and who had testified to the general defective state of the vessel. Some evidence had been given by the defendants of a representation by the plaintiffs, that one of them, Jordan, about fifteen months before, had taken off a piece of the “ thick streak,” and examined the timbers by boring, and found them then sound.

The witness was asked whether, in his opinion, judging from the condition of the timbers when he saw them, it would be possible for a man to have taken off a piece of the thick streak, and replaced it with new, fifteen months before, without discovering that the timber under it was decayed. The question was objected to, but admitted by the judge.

It appears to us, that this was a proper question to an expert. It embraced several questions, involving skill and experience to judge of. It was, in effect, taking the condition of the timber as he then found it, in point of decay, whether or not that decay could have commenced and reached the stage at which he found it, in fifteen months, and, if not, whether its actual condition could have been discovered by taking off and replacing a piece of the thick streak. This might depend on many circumstances; the position of the thick streak, the timbers exposed by taking it off, the nature of the timber, whether subject to slow or rapid decay, the effect of the action of tools on the timber, all which are conclusions not within common experience, but of which an experienced shipwright could best judge. It must depend upon several minute facts, not capable of being described in words, so as to enable a jury to draw a conclusion from them, but upon which a skilled person could readily draw a conclusion, and this must be in the form of an opinion. It is difficult to lay down a definite rule in regard to evidence of opinion, with its precise limitation. Much must depend on the particular circumstances, and the nature and state of the inquiry. Of course, a witness cannot be allowed to express an opinion on the general merits of the case. The fitness of the question, in any particular case, may, in some measure, be judged of, by keeping steadily in view the principle on which it is founded, which is, that men long devoted to a particular art, or science, or branch of business, having a larger and fuller experience, may safely draw inferences from facts, witnessed themselves, or testified by others, which could not be drawn even by men of sound judgment, with common experience in the ordinary affairs of life, but not trained and practised in the science, art, or business, respecting which the question arises.

2. The next exception arises out of evidence, tending to show that Castner, one of the owners, and agent of the others, and ship’s husband, stated, prior to the sale, that Jordan, a co-owner, told him that he had examined, repaired, and bored the vessel fifteen months previously, and found her sound, and that, at the time of said repairing, he had put in a new piece of the thick streak; but of which Castner knew nothing of his own knowledge, and referred them to Jordan, then in Boston.

It appeared that the defendants, subsequently and before the sale, did have an interview with Jordan, but there was no evidence of what took place there.

The plaintiffs, thereupon, requested the judge to instruct the jury, that the burden was on the defendants to satisfy the j™y>

1st. That Jordan made the statements alleged by Castner to have been made.

2d. That the statements, if any were made by Jordan, were fraudulent.

And they also requested the judge to instruct the jury that, when Castner, one joint owner and the agent of the others, innocently states a fact not of his own knowledge, and as told to him by Jordan, another joint owner, and, at the same time, refers the party to Jordan, who is thereupon seen by the defendants, Castner is not responsible for the truth of said fact.

Now, neither party having shown what took place at the interview with Jordan, it is exactly as if it had never taken place. It is true, ordinarily, that where one makes a statement as received from another, and refers directly to that other, the former is not bound for the truth of the facts thus stated; but this rule is subject to some modification. The circumstances which modify it here are, that one partner states what was told him by another. He was either so informed by his partner, or he was not. If he was so informed, then the representation was made by Jordan, and bound his partner. If he had not been so informed, then he made a false representation himself, and that bound Jordan. Referring to Jordan did not take away the effect of Castner’s statement, for they were joint owners, engaged at the time in the joint undertaking respecting which the representations were made, and they were equally responsible for each other’s statements in regard to it. This is substantially the effect of the instructions given by the judge upon the last point.

The instruction requested upon the first point was denied, for the same reason. Castner referred to a person, for whose representations he was responsible as for his own. The in struction was right, with this slight modification. The court of common pleas ruled, that the legal presumption was, that Castner spoke the truth when he stated the representations to have been made by Jordan. The decision was right, but the true ground of it is, that Castner was equally responsible with Jordan.

The other instructions of the judge, that if Jordan authorized Castner to make these representations, and Castner innocently did make them to the defendants,, the plaintiffs were responsible to the same extent as if they had been made to the defendants directly by Jordan; and that if, at the interview between Jordan and the defendants, Jordan made to them a correct representation of the appearance of the vessel at the time of the repairs, the plaintiffs would not be affected by said statements of Castner, were sufficiently favorable to the plaintiffs, and they could take no exception thereto.

3. One other objection taken by the plaintiffs in this action was, that the defendants, having brought their action for damages for the alleged deceit, could not use the same evidence to reduce the purchase-money, by way of defence to this action ; and they objected to any evidence being given of the fraud, contending that the defendants must elect between the two remedies.

As to the right thus to set off damages arising from deceit in the same transaction, in an action brought to recover the price, the rule formerly acted upon was, that a false warranty or false representation could not be used in any way to reduce the' agreed price, but the party entitled to recover damages must bring a cross action for the deceit. But, by the rule more recently adopted, in order to avoid circuity and multiplicity of suits, the parties and the transaction being the same, the defendant is permitted to give the same evidence in defence, to reduce the damages recoverable against him, as would enable him to recover in an action of tort. Harrington v. Stratton, 22 Pick. 510.

Still, it is very clear, that the party claiming damages for the deceit can have but one satisfaction; and, had not these two actions been tried together, and submitted to the same jury, at the same time, with instructions as to damages applicable to both, there would have been some weight in the objection.

But they were tried together, and the judge directed the jury, first, to find whether any fraud had been practised by the sellers of the vessel, and, if so, what were the damages, and to allow no more, in either or both actions, than the amount of damages actually sustained. If it equalled or exceeded the balance due for the purchase, then the defendants in this action would be entitled to a general verdict, and, as plaintiffs in the other action, be entitled to a verdict for the excess, if any. If damage was sustained, but less than the balance of the purchase, it would go in reduction of the amount due the plaintiffs for the purchase, and they would be entitled to a verdict in this suit for the difference, and, as defendants, to a general verdict in the other action. These directions, we think, were correct in principle, and tended to do justice between the parties, as if the actions had been tried separately; and, therefore, we can perceive in them no ground for setting aside the verdict.

4. As to the juror, the offer of the plaintiffs was only to show what took place in the jury-room, at the time the jury were in deliberation on their verdict. It was, that the juror stated that he had examined the vessel before the trial, that he was of opinion that she was very rotten, and so stated to the rest of the jury.

We think the judge was right in rejecting evidence of the alleged partiality and misconduct of a juror in the jury-room, by the testimony of the juror himself, or of the other jurors. It is a rule, founded upon obvious considerations of public policy, and it is important that it should be adhered to and not broken in upon to afford relief in supposed hard cases.

A verdict, as the name imports, (veredictum,) is taken, in theory of law, to be absolute truth, and it is important that it be so regarded. All communications among the jurors are confidential; they are intended to be secret, and it is best they should remain so. It is very probable, indeed it is almost inevitable, that many things should be said and views expressed, by individual jurors, which not only have no influence on others, but which they themselves do not ultimately adhere to and act upon.

It first occurred to us, to see whether the evidence offered would not be sufficient to show that the juror was disqualified, by bias and prejudice, from acting as a juror, when the jury was impanelled, by his own testimony; and whether, if this was not known to the party now offering the evidence, the verdict might not be set aside on that ground. But, in looking at the evidence of all that took place before the jury was impanelled, it would appear that the juror knew the vessel before, and had examined her, and yet it would not follow that he was under such bias or prejudice as not to be governed by the evidence given on the trial, and the directions of the judge in matters of law, or so as not to stand indifferent between the parties, within the meaning of the law. It is not every mere cause of challenge, which, if made at the time, would set aside a juror, which is sufficient ground, afterwards, and after a fair trial, to set aside the verdict. The motion on this ground is not sustained.

Judgment, in each case, on the verdict for the defendcmts  