Hinson v. King, 50 N.C. 393, 5 Jones 393 (1858)

June 1858 · Supreme Court of North Carolina

50 N.C. 393, 5 Jones 393

CHARLES HINSON v. ROBERT KING.

In an action for a deceit in the sale of a chattel, the defendant may upon the question as to his knowledge of unsoundness, give in evidence what was told him by the person from whom he purchased it.

Where a witness could not say whether a conversation, as to the unsoundness of an animal sold, took place before or after the sale, it was held that the Judge, on the trial, gave proper instruction in telling the jury that upon the question of the scienter, the evidence amounted to nothing.

This was an ACTION for a deceit and false waeeaNtt in the sale of a. mare; tried before Bailey, J., at the last Spring-Term of No wan Superior Court.

There was evidence tending to show that the mare was unsound, and that the defendant knew of such unsonndness at the time he sold to the plaintiff. In reply to this allegation, the defendant offered to prove by one Malone, that he had purchased the animal in question from him, and that he represented it to him as being sound; the evidence was objected to by the plaintiff, but admitted by his Honor; for which the plaintiff excepted.

The defendant read the deposition of one "William L. Archibald, in which there were the following question and answer: Qu: “State .whether, or not, you ever told the defendant King, that her eyes were defective, and if yon had any consultation with him, state whether it was before, or after the defendant King, sold the mare to Hinson.”

A. “I cannot answer either of the questions definitely.— As well as I recollect, I had some conversation with Mr. King on the subject. I cannot saj^ exactly what it was, or whether it was before, or after be sold to Ilinson, but it conkl not have been that her eyes were unsound, or defective, as I did not think so, but may have told him that I did not like her eyes, or that I did not consider her eyes very strong.”

The Court charged the jury that to enable the plaintiff' to recover upon the second count, he must prove that he knew of the unsoundness before the sale; that if it was after the sale, it would amount to no proof; itmustbe-before, or at, the sale; that the witness, Archibald, had stated that he did not know whether the conversation which he had with the defendant, was before or after he had sold the mare to the plaintiff, that as the plaintiff had left the matter in doubt, so far as the evidence of this witness went, it was the same thing as if there was no evidence. The plaintiff excepted to this part of his Honor’s charge.

Yerdiet and judgment for the defendant. Appeal by the plaintiff.

Osborne and Wilson, for the plaintiff.

JR. Barringer and Boy den, for the defendant.

Pearson, J.

Upon the question of the “scienter,” the testimony of Malone was admissible, and it was for the jury to estimate the weight to which it was entitled. Suppose one passes a counterfeit bank bill; to meet the imputation that.he knew it to be counterfeit, he would certainly be allowed to prove that he received it at par, and that the person of whom he received it, said it was good, or passed it as good-. We see no distinction between the two cases. It will be conceded, we imagine, that the defendant was at liberty to prove that he bought the mare; such testimony would be relevant, as tending to shew that he was less apt to have known the condition of the animal’s eyes than if he had raised her. The same reason applies to the fact that he gave a fair price, and to what he was told by the vendor at the time of the sale; it was part of the res gestee, and was relevant in respect to the “ sci-enter.” We concur with his Honor in the view taken by him of the testimony of Archibald. As he could not say whether the conversation took place ~before or after the sale, of course the jury could not; so the testimony amounted to nothing.— Edmonston v. Shelton, 4 Jones’ Rep. 451; Mathis v. Mathis, 3 Jones’ Rep. 132, Sutton v. Madre, 2 Jones’ Rep. 320.

PeR Cueiam, There is no error. Judgment affirmed.