Mann v. Parker, 4 N.C. 242, 1 Car. L. Rep. 242 (1811)

July 1811 · Supreme Court of North Carolina

4 N.C. 242, 1 Car. L. Rep. 242

Mann v. Parker.

This was an action on the case, in the nature of deceit, for a fraud in the sale of a negro wench and child. It appeared in evidence, that the plaintiff, who was a speculator in negroes, applied to the defendant for the purpose of purchasing the aforesaid negro woman and child; that the defendant said he wished to sell them, named his price, and told the plaintiff, “go into the kitchen, look at the negroes and judge for yourself;” that the plaintiff continued there while the defendant and his family breakfasted, and upon the plaintiff’s coming out of the house,the defendant asked the plaintiff how he liked them, who answered, “very well", that a bargain was concluded, and a day agreed on when the negroes were to be delivered, and a bond for the, purchase money executed; that on the day, the plaintiff was asked by one Tisdale, who was a partner with him in the purchase, what kind of bargain he had made, to which he replied “I have got a likely wench, and the child is “middling;” that after a bill of sale and a bond were executed, the defendant said to the plaintiff “if you wish to be off the "bargain you may: I can get the same price from another “man, and you are at liberty either to take the bond or the "bill of sale.” The plaintiff replied, “he had bought the “negroes and would hold him to his bargain.” It further appeared in evidence, that the defendant had bought the negroes in question at a public sale, about nine months before the sale of them to the plaintiff, and the child at the time of the latter sale was between fifteen and nineteen months old, and at that age it was not able to walk, talk or move, except upon its back backwards; that the plaintiff shortly afterwards carried them to South-Carolina with others, that a snow fell on their journey, that the child was neglected by its mother, was attacked with a dysentery, in common with other negroes in company, and when they got there the plaintiff could not sell the child, but gave it away. One witness, who lived in the family of the defendant at the time the plaintiff went to examine the mother and child, said the child appeared to be well and ate hearty, but thought it might appear to the, most common observer that the child was not altogether right. The witness further declared that the defendant one day observed (looking at the child) “I“ wish you were on the Sand-hills and I had my money for “you.”

There was no evidence that the defendant knew of any latent defect, other than that the child was kept in the house where the defendant and his family eat, or if knowing of any that he endeavored to conceal them; and the person who had sold the negroes in the character of executor or administrator, testified that he knew of no defects.

Upon this evidence, the Court left it to the Jury, with directions, that if they believed that the negro child was unsound, and its defects were known to he defendant, and he failed to disclose them or endeavored to conceal them, or was guilty of any fraud or misrepresentation, they ought to find a verdict for the plaintiff; but that if, on the contrary, they believed the defects, if any, were unknown to the seller, and he had been guilty of no fraud, or if the defects were known, and of such a nature as to be discovered by a common observer, and the plaintiff had an opportunity of satising himself on this head, then they ought to find a verdict for the defendant.

There was a verdict for the defendant, and a motion for a new trial, which upon argument was refused; whereupon the plaintiff prayed an appeal, which was granted.

Locke, J.

delivered the opinion of the Court:

From the above statement, it appears, that the plaintiff in this case was entitled to a verdict and judgment, provided the evidence adduced was sufficient to satisfy the Jury that the defendant had knowledge of the defects of the property by him sold to the plaintiff; and that the cause was submitted to the Jury on that point. The Jury, however, have found in favor of defendant; and a motion was made, and a rule granted to shew cause why this verdict should not be set aside and a new trial granted, as being either directly contrary to evidence, or at least contrary to the weight of evidence. It cannot be denied, I apprehend, at this day, that if the present case can with propriety he brought with, in either of the above rules, that then the Court ought to grant a new trial. We must then advert to the facts stated in this case, and endeavor to ascertain whether they are not such as ought to have induced the Jury to give a contrary verdict.

It appears that the defendant purchased the child in question nine months before the sale to the plaintiff, and during that time it remained in the same house where defendant usually breakfasted and dined. The child was advanced to the age of fifteen or nineteen months old, and utterly incapable of walking, talking or moving, except on its back backwards. Is it likely, then, that a defect so apparent would, during all this time, and with so many opportunities of observation, escape the notice of the defendant or some portion of his family who would communicate it to the plaintiff? If we were to judge of this defendant, as (from our experience and knowledge of mankind) we would judge of ourselves, the inference is irresistibly strong to prove knowledge in the defendant. But this is not the only fact: A day is appointed for the delivery; and when plaintiff arrives to receive his property, without the least intimation of dissatisfaction on the part of plaintiff, the defendant proposes to recant, but plaintiff refuses. What then could induce this proposition on the part of defendant? The reason assigned by himself was, that he could get the same sum, but no more, from another person. He would therefore gain nothing by this recantation, except the trouble of making: new bargain, an interest which few men covet. I incline, however, to believe this was not the true reason of the proposition; but that he expected, if a suit should be brought against him for the fraud practised on the plaintiff, proof of this proposition would tend to shew his innocence; whereas I think it shews his guilt. But if these two circumstances, should be thought insufficient, or leave the fact doubtful (in which case the rule ought to be discharged) it would seem that the declarations of defendant, when coupled with them, places the fact beyond the possibility of a doubt. It is stated in the case, that some time before the sale to plaintiff, the defendant when viewing the child in question, said “ I wish you were “on the Sand-hills, and I had my money for you.” Surely this declaration proves, that defendant had, after his purchase, discovered something in the child, which in his estimation impaired its value, and made him willing to have his money again. To this evidence on behalf of plaintiff, there is nothing, or at least very little, opposed oh behalf of defendant. Although the case states that no direct evidence was given of defendant’s knowledge except the above facts, yet I think these three circumstances, taken together, cannot fail to satisfy the most cautious individual that defendant had this knowledge, and that he concealed or did not disclose the defect to the purchaser, I therefore cannot view this verdict in any other light than that of a verdict against evidence, or (to say the least) the weight of evidence, and against the justice of the case.

Let the rule, therefore, be made absolute, and a new trial be granted.