Gerkins v. Williams, 48 N.C. 11, 3 Jones 11 (1855)

Dec. 1855 · Supreme Court of North Carolina

48 N.C. 11, 3 Jones 11

R. R. GERKINS vs. ISAAC WILLIAMS.

One is not guilty of a fraudulent concealment, so as to subject him to an action for a deceit, who fails to disclose information wliich he has received as to unsoundness in the article sold, if he disbelieves such information.

Action on the case for a false warranty and deceit, in the sale of a negro woman and child, tried before his Honor Judge Saunders, at the Fall Term, 1855, of Camden Superior Court.

Doctor Nixon, a witness for the plaintiff, deposed, that about a month before the sale to plaintiff, he had attended as a physician for about two weeks, the woman in question, while she was owned by the defendant, and that she had the dropsy. He said he told the defendant that the woman was unsound, but did not tell him what her complaint was. He advised him to get clear of her as soon as he could. He did not know of any thing being the matter with the child. He said that afterwards, and before the sale to the plaintiff, the woman got better and was able to go about.

The defendant’s counsel asked his Honor to instruct the jury that, “ although Dr. Nixon had told the defendant the negro was unsound, he was not bound to communicate it to plaintiff, unless he believed it to be so.”

The Court declined giving the instruction asked by the counsel, but charged the jury, “that if the’'evidence of the Doctor was to be believed'—that he attended the negro for two weeks, and told defendant she was unsound, and advised him to sell her, and defendant did sell her without disclosing the fact which the Doctor had communicated to him, he would be liable; and that, whether he believed it or not, unless the condition of the negro was such as to render her unsoundness apparent to a common observer, or the plaintiff otherwise had notice of it.”

Defendant excepted to this part of the charge, and a verdict and judgment having been rendered for the plaintiff, defendant appealed.

Smith and Pool, for plaintiff.

Jordcm and Hines, for defendant.

Nash, C. J.

To support this action the defendant must bo guilty of a fraudulent misrepresentation, or a fraudulent concealment—must be guilty of a moral falsehood. A person cannot be said to conceal that which he does not know to exist or does not believe to exist. If he does not believe it to exist, he is not bound to declare it to a purchaser. Hamrick v. Hogg, 1 Dev. Rep. 350. In this case there was no misrepresentation ; but it is alleged that the defendant was guilty of a fraudulent concealment. On the trial below, the defendant insisted by his counsel, “ that although Doctor Nixon had told the defendant that the negro woman was unsound, he was not bound to communicate it to the plaintiff, unless he believed it to be so.” Upon this point his Honor instructed the jury, “ that if the evidence of the Doctor was to be believed,—that he attended the negro for two weeks, and told the defendant that she was unsound, and advised him to sell her, and the defendant did sell her without disclosing the fact which the Doctor had communicated to him, he would be liable, and that, whether he believed it or not.”

In this there is error. It is directly in conflict with the case above referred to. His Honor converted into a question of law that which was a question of fact for the jury. It ought to have been left to the jury to say, whether the defendant did, or did not believe the negro to be unsound, with appropriate remarks upon the Doctor’s testimony. In Hamrick’s case, the charge to the jury was substantially as in this. The negro there had been hired out, the year before the sale, to another person, who, on returning her to the defendant stated to him, that her health, for part of the time, had been very bad, and that she was unable to work. His Honor charged the jury that the defendant’s disbelief as to the truth of the information, would not exonerate him from liability. This Court declared that there was error and reversed the judgment.

"We have not deemed it necessary to look into the other points raised in the case. For the error noticed, the judgment must be reversed and a venire de novo awarded.

Per Curiam.

Judgment reversed.