Hamrick v. Hogg, 12 N.C. 350, 1 Dev. 350 (1827)

Dec. 1827 · Supreme Court of North Carolina
12 N.C. 350, 1 Dev. 350

Nathan Hamrick, v. Francis Hogg.

From Rutherford.

Moral turpitude in the Defendant is necessary to charge him in an action for a deceit.

Where the Defendant, in an action for a deceit in the sale of a slave, had been informed that the slave was unsound, if he does not credit the fact, he is not bound to disclose it.

Case for a deceit in the sale of a female slave. On the, trial, it appeared that the negro had belonged to one Rutherford, who died intestate, in the year'1819. Letters of administration upon his estate, did not issue until January, 1823, when the Defendant being appointed administrator, took the personal property into his possession, and sold the negro in dispute to the Plaintiff, in February 1823, at public auction. During the *351interval from Rutherford’s death, until the appointment of the Defendant, the negroes belonging to the estate had been lined out, under an order of the County Court. The Plaintiff, proved by the. person who hired She negro for the year befare- the sale, that in the first part of that year, her health was very bad, and that she was unable, to work — hut that in the latter part of it she was better, and rendered him some services — that when he returned the slave lo the Defendant, in January 1823, he informed the Defendant of this sickness, andón that account, claimed a deduction from the hire. The witness also swore, that at the same !¡ii;r, he offered to keep the slave until the sale, which was then advertised, on the same terms he had given for the year which was then just past.

His honor Judge Norwood, instructed the Jury that if they believed the. Defendant, at the time, of the sale, had forgotten the information given him by the witness as to the- health of the negro, they ought to find for him. But if they coliected from the testimony, that, such information had been given, and not forgotten by him, and that he did communicate it to the Plaintiff, his belief as to the truth of the information, would not exonerate him from liability, which would depend on the fact whether the negro was well or not.

A verdict being returned for the Plaintiff, the Defendant appealed.

The case was submitted without argument, by the Attorney-General and JJcverenx, for the Plaintiff. No Counsel appeared for the Defendant.

Henbersost, Judge.

This action is founded on a fraud ; to support if, there must he either a fraudulent misrepresentation, or a fraudulent concealment. It is not sufficient that the representation be false in point of fact; the Defendant must be guilty of a moral falsehood. *352The party making a representation, must know or be-¡¡eve it to be false, or what is the same .thine:, have no . ° reason to believe ¡Í to be true.

Concealment ex vi termini imports a knowledge of the thing concealed ; for a person cannot he said to conceal that which he does not know, and silence, as to a fact which the party does not believe to exist, cannot be said to be a fraudulent concealment. 1 cannot therefore agree with the Judge below, that (he Defendant was bound to declare, and was guilty of a fraud if he did not declare that which he did not believe to exist, although he had been told that it did exist. It should have been left to the Jury to say whether the Defendant had a knowledge of the unsoundness of the negro.

I disturb this verdict with great reluctance, because I believe it meets both the law and the justice of the case.

Per Curiam. — Judgment reversed.