Setzar v. Wilson, 26 N.C. 501, 4 Ired. 501 (1844)

June 1844 · Supreme Court of North Carolina

26 N.C. 501, 4 Ired. 501

CALEB SETZAR vs. GEORGE WILSON & AL.

In an action on the case in the nature of a conspiracy charging that the defendants combined to injure the plaintiff’s credit, it is necessary for plaintiff to aver in his declaration the means by which such injury was intended to be effected.

It is no ground to support such an action, that the defendants, having an execution levied on the plaintiff’s property, required that the sale should be for specie.

Nor can such an action be maintained upon the ground that the defendants had by fraud obtained from the plaintiff the assignment of a judgment, and the transfer of a bond not endorsed, for in a court of law the property in these still remained in the plaintiff.

Nor can it be maintained on the ground that the defendants had fraudulently procured a conveyance of a slave from the plaintiff; for if the fraud or imposition was of such a nature as rendered the conveyance void at law, then the plaintiff has not lost his property; if the conveyance was good at law, then the plaintiff’s only redress is in equity.

A vendor is liable in an action of deceit for false representations as to the title or qualities of a chattel sold by him : but no action for a cheat has ever been maintained by a seller against a purchaser for the misrepresentations of the latter upon those points.

A communication voluntarily made to counsel, after he has refused to be employed by the party making it, does not come within the rule of confidential communications, and is therefore admissible in evidence.

The cases of Clary v Clary, 2 Dev. 78, Reid v Moore, 3 Dev 310, and Saunders v Eaiterman, 2 Ired. 32, cited and approved-

Appeal from the Superior Court of Law of Davie County, at Spring Term 1844, his Honor Judge Battle presiding.

This was an action on the case in the nature of a writ of conspiracy, in which the plaintiff charged the defendants with conspiring to defraud, and that they did defraud him of his property, particularly of a negro boy, a note for between 500 and 600 dollars, and the balance of a judgment for 3 or 400 dollars, and also conspiring to destroy his credit, and thus to cause his insolvency.

On the trial the plaintiff introduced several witnesses, avIio testified, that in the years 1840 and 1841, he was in possession of a tract of land worth 5 or 600 dollars, a negro boy 4 or goo dollars, two horses, some stock and household and kitchen furniture, and that, by his intermarriage with his wife, he had acquired anote for between 5 and 600 dollars, and the balance of a judgment for 3 or 400 dollars, and that the defendant, George Wilson, afterwards obtained the possession of the negro, the note and judgment claiming them as his own. The plaintiff then called one Samuel Latham, who testified that he heard the defendant George say, while speaking of the plaintiff, that he had made a neat calculation and found that he had made enough to go through a pretty big law suit, and have several hundred dollars left. Witness then told him that one Kellar had stated, that he had procured the plaintiff’s property fraudulently, which the defendant George denied,, and said that he had got several things from the plaintiff, but had paid him the full value for them; and further, that but for Andy Setzar (the plaintiff’s brother,) he and the plaintiff would still have been friendly. Mr. Pearson Arms then called, to testify as to certain declarations made to him by the defendant George, but he was objected to by the defendants, upon, the ground that the declarations were made to him as counsel. He then stated that the circumstances, under which they were made, were as follows: On the Eriday of the County Court of' Rowan, in February, 1841, after he had returned to Mocksville, the defendants William and his son George, came to see him and found him in the court house; that the defendant William told him they had some business Avith him, and that the defendant George would tell him what it was ; that thereupon he and George went into a room to themselves, when George told him he wished to employ him in the business of Setzar; that he had already employed four lawyers, naming them, and was to give them large fees, and that he could not afford to pay him a large fee, but he Avould give him twenty dollars to be silent, which the witness refused to take, sajung that be always believed that there was so much rascality oh one side and ignorance on the other, that he did not care to have any thing to do with the case; and that, after that, the, defendant George made the declarations, which the plaintiff proposed to prove. The court, upon this statement, was of opinion, that the testimony was admissible. Whereupon the witness testified, that the defendant George told him he had long tried to get the note in question from the plaintiff’s wife, who had possession of it; that the plaintiff himself was willing he should have it, and that at last he took a jug of French brandy and went to the wife, and he and she drank it, until he procured the note from her; that the defendant George told him further, that although he had employed four lawyers, he would have enough left to save either 3 or 400 dollars, the witness did not recollect which sum. Upon cross-examination, the witness said he did not recollect that any thing was said about the negro, and that the defendant stated that he wished to prosecute the plaintiff for perjury. Several witnesses were then introduced by the plaintiff, and swore, that, at different times, they had heard the defendants represent the plaintiff as insolvent or in failing circumstances, and had advised his creditors to press their claims if they wished to secure them. One or two of these witnesses stated, however, that they had requested the information given by the defendants. One witness testified, that, as early as harvest time in 1840, he had heard the defendant William say, that there were some good bargains to be got out of the plaintiff, and he intended to try it, and that there was a tract of land that suited his son George mighty well. G. Richards was then called and swore, that as an officer of the county, he had sundry executions against the plaintiff, two of which, amounting to between fifty and sixty dollars, were in favor of the defendant William, and had the preference; that he levied upon all the stock, farming utensils, and house hold and kitchen furniture of the plaintiff, and advertised them for sale in the usual manner; that several persons attended on the day appointed for it, and then- the defendant William, for the first time, demanded specie for the amount of his debts ; that in consequence thereof, the property sold very low- This witness stated lurther, that he heard the de-fen¿}ant william say, on that day, that, if the plaintiff would secare two debts, and release him from his securityship on a bond for the prosecution of a suit, which the plaintiff had in court,- he would forbear the sale, and wait six months for his money. It was further in evidence, that all the plaintiff’s property had been sold, and he was entirely insolvent. The defendants then introduced as a witness one Limn, who testified that, on the 4th of February, 1842, he went to the house of the defendant George on business, and, it being late in the evening, was invited to stay all night; that during the evening, the defendant George told him he had purchased the plaintiff’s negro boy at the price of $>486; that next morning the boy came to the house and brought a note to the defendant George, who, after reading it, said he must go to see the plaintiff; that he went off, and soon after returned with the plaintiff; that he and the plaintiff went into another room, and after being together some time, the plaintiff came to the door and requested the witness to attest an instrument, and he, accordingly, after hearing the parties acknowledge it, did attest the bill of sale in the ordinary form for a slave named Hinson, and containing an acknowl-edgement of the receipt of the consideration money $486 ; that he did not see the defendant George pay the plaintiff any money, but he saw the plaintiff with a roll of money in his hand, and heard him say he was under obligations to the defendant George for paying him in money and not in notes, which he held against him, and that the money would enable him to pay some debts which were pressing him ; that, afterwards, and before the parties separated, the defendant George said to the plaintiff, you have not assigned the note yet, to which the plaintiff replied, that he would do it then, and the note was produced and an endorsement made. The following are copies of the note and the endorsement thereon,- and also of the assignments of the judgment. “ f543 25. One day after date, we or either of us promise to pay Lucius Q,. C. Butler, executor of Rachel Butler, deceased, five hundred and forty-three dollars 25 cents, for value received. Witness our hands and seals this 1st of June, 1840.” Signed and sealed by “H. Keller” and three others. Endorsed “ Pay to George Wilson for value, Feb’y, 1842,” (signed) “ Caleb Setzar.”

“ For and in consideration of the sum of three hundred and fifty dollars to me in hand paid by George Wilson, receipt I hereby acknowledge, I assign to the said George Wilson all my interest in an execution obtained against L. Q.. C. Butler, as executor of Rachel Boswell, dec’d, the suit was brought by Rachel M. Boswell, Jun., and is to the use of Caleb Setzar. Given under my hand and seal, this 23d Jan., 1842.” (Signed) “ Caleb Setzar.”

Endorsed on this assignment as follows, viz.

“ February 5th, 1842, for value received I assign all my interest in the within, except two hundred dollars, which has been heretofore received by me, to Henry F. Wilson.” (Signed) “ George Wilson.”

Mr. Hawkins was then called by the defendants, and stated that he was at the sale made by the constable of the plaintiff’s property, and heard the defendant William, both before and after the sale of a certain horse which he bought, say that if the plaintiff would give hini a note .and security for his debt he would wait with him six months.

The defendants’ counsel insisted in their argument, that, In order to entitle the plaintiff to recover, he must prove a combination. between two or more to defraud him; that before such combination was proved, the declarations or admissions of one were not admissible against the others, that the evidence was insufficient to establish the existence of any such combination by the defendants, or any two of them; that it was not sufficient to prove any fraud on the part of any one ■of the defendants; and they particularly insisted, that, if the plaintiff knew rvhat he was doing when he signed the bill I oí sale for the negro and the endorsement on the note and he could not recover in that action, even though ^-e ^een previously imposed upon in the treaty, for that fraud in the consideration alone, would not be any ground o£ rej£e£ at however it may be in equity. The Court, after addressing some remarks to the jury in relation to the representations made by the defendants, of the plaintiffs failing condition and to the sale of the plaintiff’s property for specie, to which no exception was taken, charged them, that though it was true, that, in an indictment for a conspiracy, or in the writ of conspiracy, it was essential, to sustain the indictment or action, to prove a combination between two or more, yet it was' not so in the modem action on the case in the nature of a writ of conspiracy; that in this action one of the defendants alone might have a verdict against him, though the others were acquitted, but that it was still necessary to prove a combination between two or more, in order to render the declarations or admissions of one admissible as evidence against the'other conspirator; that if they believed there was combination between the defendants, or any two of them, to defraud the plaintiff of his property, and that, in pursuance of such combination they did defraud him, he. was entitled to recover against those who joined in the fraudulent combination; that a mere knowledge of the existence of a conspiracy, without participating in it, would not be sufficient; that if they -were not satisfied of the existence of a combination between two or more of the defendants, but believed that any one only of the defendants, by fraud and contrivance, managed to cheat the plaintiff of his property, they might ñnd a verdict against such one, though they acquitted the other defendants; that if they believed the defendant George hdd purchased the negro boy, the note, and the judgment, fairly, and for a full'price, or any thing like a full price, he could not be rendered responsible in this action; but if they believed that he had, by fraud and contrivance, got either the negro boy or the judgment for nothing, then the action could be sustained against him. The jury returned a verdict in'favor of the plaintiff against the.defendant George, and in favor of the other defendants. A motion was made for a new trial, because of the admission of Mr. Pearson’s testimony, and for misdirection in the charge to the jury. The motion was over-ruled, and the defendant George appealed from the judgment rendered on the verdict.

Alexander and Osborne for the plaintiff.

Caldwell for the defendants.

Ruffin, C. J.

The verdict throws out of the case William B. Wilson and Henry F. Wilson, and their acts and declarations ; and leaves the declaration against George Wilson alone, first, for “ destroying the credit of the plaintiff and thereby causing his insolvencyand, secondly, for “ defrauding the plaintiff of a certain negro slave, a note and a judgment belonging to him.”

As to the first, the plaintiff does not allege any means, by which any of the defendants injured his credit, as by the use of words importing his insolvency, or the like, so that the defendant had not the opportunity of insisting on the truth of the imputation as a justification, which the evidence shews they might certainly have done. If, therefore, the defendant George, had said upon the subject of the plaintiff’s circumstances, what it appears, his father did, he ought not to be responsible therefor in this action, because the complaint is not for an injury from the speaking of those words as a slander, but only a general charge of conspiring between them “ to destroy the plaintiff’s credit,” which could only be answered by .the general issue and not justified. If there had been a count for the slander directly, the defence would have been unquestionable upon the truth of the imputation.

Again, if we suppose proper allegations in the declaration relative to the sale of the plaintiff’s property under the execution of William B. Wilson, and the demanding of specie by him, as proved, we should hold that those acts constituted no legal injury. Every 1 creditor has a right to demand payment in money, and there is no money known to our law but metallic coin, domestic or foreign, as made current by. the laws of the United States; and, therefore, to demand suc^- payment cannot be a wrong in the eye of the law. But, in truth, the party made a liberal offer, to retract his demand o£ payment jn that manner, and further, to take a new security for his debt payable six months afterwards, if the plaintiff would give him competent sureties and indemnify him against cerlain responsibilities for the plaintiff. That the plaintiff declined or was unable to do, and the other party then insisted on the sale upon the terms stated, and, we suppose, it was made. But we see nothing which shews, that it was not a fair, and perhaps, the only means that person had, in the wreck of the plaintiff’s affairs, to save himself from loss by his engagements for the plaintiff. The effect was felt rather by the plaintiff’s other creditors than by himself, as he appears to have been unable to pay his debts under any circumstances ; unless, indeed, the property .conveyed by him to the defendant, George, be still regarded as legally his, or unless he has some action at law in respect thereof for damages. But, for those acts of his father, the defendant George is not responsible, as it does not appear that George participated in them; and if he had, it would have made no difference, inasmuch as the jury have found, under the instructions of the Court, the father himself did the plaintiff no injury thereby, and, a fortiori, the defendant George did not. Consequently, we must understand that the verdict against that defendant was not on this part of the case. If it was, it was clearly against law, and ought to have 'been set aside.

Then, as to the other part of the case, it appears from the assignments and bill of sale which are inserted in the case, that on the 23d day of January, 1842, '.he plaintiff under his hand, “ in consideration of the sum of $350, to him in hand paid by George Wilson, (the receipt whereof he thereby acknowledged,) assigned to said George Wilson all his interest in an execution obtained in the name of Rachel M. Boswell against L. Q,. C. Butler, which is to the use of Caleb Setzar,” the plaintiff. It appears also, that one H. Keller and Olliers, on the 1st of June, 1840, gave their bond to L. Q,. C.' Butler, for $543 25, payable one day after date, which, without endorsement, came into the hands of the plaintiff, he endorsed it in these words, “pay to George Wilson, for value, February, 1842,” and delivered it to the defendant. And, lastlv, it appears, that on the 4th of February, 1842, the plaintiff executed to the defendant George, a bill of sale (which is attested by the witness John Sams,) for a negro boy named Hinson, fifteen years old, in consideration of $486, therein expressed to be then paid. In reference to those transactions, the instruction to the jury was, “that if the defendant George, by fraud and contrivance, managed to cheat the plaintiff of his property, they should find a verdict against him; and that, if that defendant purchased the negro boy, the note, and the judgment, fairly, and fora full price, or any thing like a full price, he could not be rendered responsible in this action; but if they believed that he had, by fraud and contrivance, got the negro, note, or judgment for nothing, then the action could be sustained against him.” The jury thereupon found for the plaintiff, and assessed the damages to $1000'; and from the judgment, the defendant George appealed to this Court.

The Court is unable to perceive any principle whatever, on which the plaintiff was entitled to recover, according to the case proved, and still less according to that alleged in his declaration.

It is to be remembered, that we are in a Court of Law, in which legal interests and legal conveyances alone can be taken notice of, and legal injuries redressed. Bearing this in mind, the question immediately presents itself, what property the plaintiff had in the things, of which he alleges that he was defrauded. If he had no property in them, he has lost nothing in a legal sense, and cannot have an action at law in respect to such as he had no property in. ño; if his property in them be the same it was, notwithstanding any supposed conveyance obtained from him by the defendant, he has no cause of action. Now, that is just the fact both with regard to the bond, given by Kellar to Butler, and the judgment recovered by Boswell against Butler, Neither of them belongs in law to the plaintiff. A judgment is not assignable; and the sum recovered therein was still a debt to goswej]) an(j was not transferred to the defendant by the plaintiff’s assignment. To give effect to the assignment, the defendant would be obliged to go into a Court of Equity, and there he would be repelled by his supposed* fraud, if established, and the money declared still to belong to the plaintiff. The same is likewise true as to the bond. For although a bond is assignable, yet this-had not been endorsed by the ob-ligee to the plaintiff; and therefore his assignment did not vest the right in the defendant, so as to enable him to recover in an action at law, against the obligor, and -he could only have done so in equity, upon a bill against the obligor, obli-gee, and the present plaintiff; in which there would be the same bar as against his claim to the judgment. If it be said, that the plaintiff’s assignment of the bond, if not effectual as an endorsement to transfer the bond, might yet be obligatory as a guaranty,on which he could be sued at law ; the answer is, that, if it was obtained without consideration and by imposition, not being by deed, it would not be obligatory even as a guaranty, and there could not be a recovery on it against the present plaintiff. In respect to those two items, then, the defendant may, for these reasons, be entitled to a verdict, and therefore, the judgment should be reversed, at all events, and the cause sent back for another trial, as to that part of the transaction, which concerns the slave. If, however, the bond and judgment had been the property in law of the plaintiff, and if his assignments had been effectual, as legal conveyances, to transfer the property to the defendant in the bond and judgment, as the bill of sale did in the slave, we should still hold, that the plaintiff has no cause of action, because he has sustained no legal injury. So, we think, it is with respect to the slave, and, by consequence, would be as to the bond and judgment.

It is still to be borne in mind, that we are in a Court of Law, in considering the case as to the slave. Thus, if the conveyance for the negro was obtained from the plaintiff by duress, or when he was so drunk, that he did not know what he was about, or when he was non compos mentis, it would be invalid as a contract, and the negro would still belong to the plaintiff; and, consequently, he would have sustained no injury in point of law, from having been induced to give thé bill of sale, and that would be an answer to the action. But if, as we suppose, we must take that instrument to have conveyed the slave, and that thereby the plaintiff lost his title, then the plaintiff' has no cause of action at law, for' the fraud of the- defendant did not deprive him of his slave, but the plaintiff parted with him by his own act and deed. As long as that instrument remains in force and uncancelled, the plaintiff is precluded from alleging that he was cheated out of his slave by the defendant. The redress of the plaintiff, if he has any, is to have that instrument declared void and decreed to be delivered up and cancelled, or a re-conveyance decreed by the Court to which belongs such jurisdiction. It is not sufficient to allege in a declaration in general terms, that the defendant defrauded the plaintiff, but the fraud must be set forth, the means used, and the purpose effected. Here, it is said, the defendant defrauded the plaintiff of a negro, but by what method the Court is not informed. If we look to the evidence for information on the point, we would infer that the supposed fraud consisted' in thisthat the plaintiff, though having capacity to contract, was a weak, intemperate, and needy man, having great confidence in the defendant, an artful man, and in some degree of affluence, and that the defendant, taking advantage of the plaintiff’s necessities, and of the power he had over him, as his creditor, obliged him to sell and convey to him property at a grossly inadequate price, or that, under the pretence of a security for debts and advances, the defendant obtained an absolute conveyance, or that by undue influence of the defendant, as*a pretended friend of the plaintiff, he prevailed on him to execute a conveyance for the slave without any consideration whatever, or as upon a sale for the sum of $>486, which he did not pay nor secure, though in the conveyance he took . a)1 acquittance therefor, as if it had been paid. Such we understand must have been the views, or some of them, in which ijjg case wag sut,mitted to the jury; because his HONOR told them, if the defendant purchased fairly, and for any thing like a full price, to find for him; but if he got the negro (by fraud and contrivance,) for nothing, then to find for the plaintiff. We understand his Howor to mean by "nothing,” not, literally, no price or nominal sum at all, but a sum not any thing like a full price, though we do not think it material; for whether the plaintiff conveyed'for an adequate price or made a conveyance entirely voluntary, it would be valid at law, provided the party had capacity, which is not pretended to be denied in this case. Now, as no particular act of “fraud or contrivance” is designated in the instructions, other than the inadequacy or want of consideration, we must assume that the fraud was so constituted. And, so taking it, we hold the law to be otherwise, even if there were the other circumstances of undue advantage, influence, and imposition, before suggested, in bringing the plaintiff to agree to make the conveyance in question. Here the bill of sale, as an effectual legal conveyance, absolutely rebuts the allegation of fraud at law. Even if it were voluntary upon its face, it would do so, as such a conveyance is good. But upon its face it purports to be for $>486 and that sum paid; which concludes the vendor at law, that he did not convey for “ nothing.” Improper influence constitutes no legal objection to the validity of a deed. Clary v Clary, 2 Dev. 78. And a fraud in a treaty, which is consummated by a subsequent deed, cannot be alleged by way of impeaching the operation of the deed at law. Reid v Moore, 3 Dev. 310. Those are proper enquiries for a Court of E~ quity, which may set aside deeds, though executed by one having capacity, if obtained by improper means, or may hold them up merely as securities, if they were so intended or ought to have been. What other fraud could the defendant have committed on the plaintiff? A vendor is liable in an action of deceit for false representations, as to the title or qualities of a chattel sold by him. • But no action for a cheat has ever been maintained by a seller against a purchaser, for the misrepresentations of the latter upon those points. The law does not even give an action against the vendor, for his false affirmation as to the value of the thing sold. Saunders v Hatterman, 2 Ired. 32. Much less will an action lie against a purchaser for such an affirmation, or buying at an tinder value. In the nature of things, the owner of a chattel is supposed to be the best judge of its value, or to be most capable of ascertaining it.

The plaintiff has mistaken his forum. He has shewn no legal injury, and therefore the judgment must be reversed, and the cause remanded for a venire de novo.

The opinion already given, would render it unnecessary to determine the question of evidence. But as our opinion on it decidedly concurs with that of his Honob, we deem it proper to say so. The communication was made after the witness had refused the employment, and was, therefore, not confidential.

Peu Cubiam. Venire de novo ordered.