Ferebee v. Gordon, 35 N.C. 350, 13 Ired. 350 (1852)

June 1852 · Supreme Court of North Carolina

35 N.C. 350, 13 Ired. 350

WILLIAM E. FEREBEE vs. WILLIAM R GORDON.

If the vender of a slave makes to the vendee, at the time of the sale, an affirmation as to the soundness of the slave, which is false within hi8 knowledge, he is responsible to the vendee in damages.

Appeal from the Superior Court of Law of Currituck county, at the Spring Term 1852, his Honor Judge Battle presiding.

This was an action on the case for a false and fraudulent representation of soundness in the sale of a negro slave. Upon the trial, there was evidence given, tending to show that the slave in question was unsound at the time of the sale, and that the defendant knew it. A witness was called, who testified, that she was present when the plaintiff purchased the slave: that she heard the plaintiff ask the defendant if the slave was sound; to which he replied, that he was, so far as knew: that the plaintiff then enquired, whether he could warrant him to be sound; that the defendant said he would not, but the plaintiff must take him as he had taken him. It appeared, that the defendant had purchased the slave two days before at a public sale, made by a guardian, who announced, that he would not warrant the soundness of the slave, and the purchaser must take him at his risk. It also appeared, that the plaintiff was at the sale, and bid; and that the slave was not present when the plaintiff purchased him.

The defendant’s counsel contended, that, as the plaintiff had purchased the slave at his own risk, the reply of the defendant, when asked if the slave was sound, was not sufficient to make him responsible, even if the jury should believe, that he knew the slave to be unsound, as he had not used any artifice to prevent the plaintiff from discovering the defects of the slave.

The Court charged the jury upon this point, that, if the defendant had said nothing, he would not have been responsible, had he used no artifice to prevent the plaintiff from discovering the defects of the said slave ; but that, as he stated the slave to be sound, so far as he knew him, if that statement were false within his knowledge, he was responsible for it, as a false and fraudulent representation, Verdict for the plaintiff. Motion for a new trial: Motion overruled: Judgment: And defendant appealed.

Heath for the plaintiff.

Smith for the defendant.

Nash, J.

The charge of his Honor was entirely correct. When an article of personal property is sold with all faults, the doctrine of caveat em-ptor certainly applies. The very object of introducing such a stipulation into the contract is to put the buyer upon his guard, and throw upon him the burthen of examining the article, and guarding himself against all frauds, as well those which are secret, as those which are apparent. But the rule never was adopted to encourage fraud and deceit, or false dealing between man and man. The principles of the com* mon law are based on morality — not an abstract or ideal morality, but one encouraging and enforcing free dealing between man and man. When, therefore, in a contract of sale, the vendor affirms that, which he either knows to be false, or does not know to be true, whereby the other party sustains a loss, and he acquires again, he is guilty of a iraud, for which he is answerable in damages. When, therefore, sued for a deceit in the sale of an article, he cannot protect himself from responsibility, by showing, that the vendee purchased with all faults — if it appear that he resorted to any contrivance or artifice to hide the defect of the article, or made a false representation at the time of the sale. The fraud may exist, either in using means to conceal the defect, or in a false representation of the condition of the article. The case we are considering, states, that there was evidence tending to show the unsoundness of the negro, at the time of the sale, and of the defendant’s knowledge of the fact; and it shows, also, the assertion of the defendant, that he was sound so far as he knew. The questions, both of unsoundness and the scienter, were left by his Honor to the jury, with the direction, that if the statement made by the defendant, as to the soundness, “was false within his knowledge, he was responsible for it, as a false and fraudulent representation.” We concur in this opinion, and it is sustained fully by the case of Schneider & Heath, 3 Camp. 505. The words of Chief Justice Mansfield are strongly applicable to this case. In the commencement of his opinion, he remarks: “ The words are very large to exclude the buyer from calling upon the seller for any defect in the thing sold ; but if the seller was guilty of any positive fraud in the sale, these words will not protect him. There might be such fraud, either in a false representation, or in using means to conceal some defect.” See also, 2 Steph. N. P. 1283 — Millish v. Motteux, Pea. N. P. cases 156.

No error is perceived in his Honor’s charge; and the judgment is affirmed.

Per Curiam. Judgment affirmed.