Henderson vs. Walker et al. erecting the structure. He petitioned for leave to bring suit against the receivers, and it was granted. He brought suit accordingly against them in their official capacity. A motion was made at the trial, in behalf of the defendants, to dismiss the declaration. It was sustained; the declaration was dismissed, and the order granting leave to sue was rescinded, on the ground that there was no cause of action. The general rule of the comman law remains of force in Georgia, that the principal is not liable to an agent for injuries arising from the negligence or misconduct of other agents about the same business: Code, section 2202. An exception prevails by statute in the case of the employes of railroad companies: Code, sections 2083, 3033, 3036. It admits of some doubt whether the exception embraces any injuries but such as are sustained from the running of cars or engines. We are inclined to think the terms of section 3033 are broad enough to comprehend all injuries, and that the chief, if not the only difference between an employee of a railroad company, and a stranger to the company, in respect to the right to recover, is that the doctrine of contributory negligence, recognized in section 3034, applies to the latter only. The former, in order to recover anything, must be without fault; he is denied the advantage of apportioning the damages according to the degree of his own negligence or misconduct as compared with that of the company or its other employees: See Code, section 3036; 35 Georgia Reports, 105. In the present case, however, we find it unnecessary to rule the question whether, if this plaintiff were an employee of a railroad company, he would have a cause of action or not. He shows by his declaration that he is not such an employee. He rests his case on a statutory right, and yet does not put himself into the only class to which the right belongs. The company owning the road was not in possession. It had no employees. There was no privity between it and the plaintiff. He was not its servant; it was not his master. It had nothing to do with selecting his co-employees whose negligence caused the injury. A court of equity, by its officers, the re Henderson vs. Walker et al. ceivers, had possession of the road; and the plaintiff, instead of hiring himself elsewhere to a railroad company or corporation, voluntarily hired himself to these ministers of the law. We think the letter of his situation is the law of it, and that as he was not in fact in the employment of a railroad company, he is not to be considered in such employment by construction. Unless the contrary appeared the receivership is to be deemed a compulsory one; there is no presumption that the receivers went in on the application of the company or by its consent. They represent, not the company but the court. The property and franchise of the company have been seized, and the court, subordinate to the laws of the land, is for the time being, the lord paramount. Doubtless the receivers as common carriers, bear a relation to the public very similar to that of other common carriers; but the difference between the public and this plaintiff is, that the public can appeal to a general law applicable as against all common carries, whereas, the plaintiff must invoke a special statutory provision which will not reach all employers alike, but only railroad companies. Other classes of employers have not been made subject for injuries sustained by one servant through the fault of another. It would be uncandid to deny that, to a certain extent, the same reasons of public policy and of private justice which call for the protection of the operatives on a railroad when owners or lessees are in possession, apply when receivers are in possession, and making use of their possession to carry on the same business, in the same way. While receivers represent the court, they are not acting for the benefit of the court, but for that of creditors and owners; and what is made or saved by their operations is mere private property. Still, it is clear that the employees of receivers are not within the words of the Code, and to extend the words by construction, so as to subject the company's assets to pay damages for the carelessness or misconduct of men whom neither the officers or agents of the company had any part in selecting, would be attended with difficulties, both technical and practical. Inju Dortic vs. Dugas. ries to freight and passengers may come under the head of expenses of administration; but to include under that head. the damages caused by one necessary agent of administration to his fellow, would be like punishing the body because one hand or foot had wounded the other. Decisions may be found on a somewhat different line from that which we deem the true one: See 20 Ohio State R., 137, 150; Redfield on Carriers, section 37. But it is not improbable that even these would square with the principal grounds on which we place our judgment, namely, that the employee of receivers is not to be treated as the employee of a railroad company, so as to entitle him to reap the fruits of a statute which offers nothing to any but the latter class of employees. Judgment affirmed. 55 481 59 291 61 103 AUGUSTUS L. DORTIC, plaintiff in error, vs. ALEXANDER E. 1. Partnership transactions with third persons which took place after the sale of his interest by one partner to another, and after the retiring partner had ceased to be a member of the firm, are not admissible in evidence against him, upon the question of the value of his interest when sold, nor upon the question of fraud or mistake in the contract of sale. And equally inadmissible are judgments rendered against the new firm, to which the retired member was no party. 2. An order of court distributing money to a mortgage in preference to an ordinary judgment, is no evidence, against a stranger, of the existence, date, amount or consideration of the mortgage, nor of its rank as compared with the judgment. 3. Declarations as to the value of a partner's interest in the partnership enterprise, not connected with any specific statement touching the property, liabilities, credit, income or resources of the firm, are not representations of a fact, but expressions of opinion only. 4. If, in the course of negotiations between two partners, pending an offer by one to sell out his interest to the other, a third partner, having better opportunities than either of them to form a correct opinion of the value of the interest in question, voluntarily expresses a pretended opinion, misrepresenting his real belief, both of the others believing him sincere when he is not, neither of these will be responsible for his want of candor, and Dortic vs. Dugas. however much his pretended opinion (acquiesced in by both) may influence either in the final transaction, the sale will not, on that account, be set aside. It might be otherwise, if the misrepresentation related to matter of fact instead of matter of opinion. 5. An erroneous opinion, common to both parties, as to the value of a partnership interest, is not such mistake of fact as will warrant a rescission, in equity, of the sale of such interest. 6. With equal opportunities for knowing the truth, a party grossly failing to inform himself must take the consequence of his neglect. 7. A jury instructed that they had no power to rectify contracts, would nevertheless understand that they could declare the one in question rescinded for fraud, when further instructed that every man is held to the strictest integrity, and relief should be given against any advantage obtained through deceitful practices or fraudulent acts, whether committed by misrepresentation or otherwise. 8. Unless there was actual fraud in the seller, the circumstances of the present case would not warrant a rescission of the contract, even if the interest sold was of no actual value, which fact is not established by the evidence. It is not clearly shown that the value was less than the price paid, and there seems to be no evidence whatever of intentional wrong. 9. That a business was worthless when purchased, and yet was not discovered by the purchaser to be so, until more than four years thereafter, would argue great and continuous inattention on his part, or great obscurity in the subject. Partnership. Evidence. Evidence. Mortgage. Mistake. Rescission. Sale. Fraud. Before Judge GIBSON. Richmond Superior Court. January Adjourned Term, 1875. Dortic filed his bill against Dugas, making, in brief, the following case: Dugas induced him to enter, at Augusta, Georgia, February 14th, 1866, into a timber cutting partnership with him (Dugas,) Benjamin R. Holt and William Wallace, two strangers, whom Dugas introduced and recommended, under articles of agreement, by which the firm name was to be Holt, Dugas & Company; the partnership was to last for one year, from February 14th, 1866; Holt, Dugas and Dortic were to contribute $2,000 00 each as capital, and Holt and Wallace were to be the business managers. Operations began forthwith in South Carolina, under the personal supervision of Holt and Wallace, and Dugas resided with them at the Dortic vs. Dugas. scene of operations. On representations of the prosperity of the business being great, and that more money was needed to make it available, the firm borrowed $5,500 00 from Dortic at various times up to January 8th, 1867, and gave him the firm notes therefor, all due February, 1868. On the 7th of February, 1867, Dortic, on the representations of Dugas and Holt that it was worth that amount, bought Dugas' interest in the firm, and paid him $4,000 00 in cash therefor. Dortic continued in business with Holt and Wallace under the firm name of Benjamin R. Holt & Company, and, under renewed representations of prosperity, lent that firm $500 00 and took its note therefor. In the fall of 1867 Dortic withdrew, and Holt and Wallace continued as the firm of Holt and Wallace, and moved to Tatnall and adjacent counties in Georgia. Here, in 1868, the firm mortgaged all its property to Guerard & Holcombe, of Savannah, for $6,501 00, Dortic having no knowledge of the transaction. In 1869 the firm of Holt & Wallace gave its note to Dortic for $6,630 00, amount of the loans previously stated, and in 1870 Dortic reduced this to judg ment, but Guerard & Holcombe came in as prior mortgagees and secured $939 69, the total amount realized by the sheriff from the sale of Holt & Wallace's property. Both Holt and Wallace then left the State. Dortic has never received $1 00 of the moneys loaned by him as above stated, and only learned of Holt & Wallace's transactions after his withdrawal, shortly before the filing of his bill. Dugas must have known the real condition of the business of the firm of Holt, Dugas & Company, and the true character of Holt and Wallace when he (Dugas) was living with those parties at the scene of the firm's operations in South Carolina; he violated the obligations of partnership and good faith by not informing Dortic of the real state of affairs; he committed a legal fraud on Dortic by selling him his (Dugas') interest in Holt, Dugas & Company for $4,000 00 under false or mistaken representations of that being its value, when it was in fact worth little or nothing at the time; by like representation he (Dugas) led Dortic to continue in business with Holt and Wallace, and it |