Opinion · Supreme Court of North Carolina
Ferebee v. . Gordon
Ferebee v. . Gordon, 35 N.C. 350 (N.C. 1852)
- Type
- Opinion
- Court
- Supreme Court of North Carolina
- Jurisdiction
- North Carolina
- Date
- 1852-06-05
- Topic
- general
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.
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FEREBEEv. GORDON,35 N.C. 350(1852)
WILLIAM E. FEREBEE v. WILLIAM R. GORDON.
Supreme Court of North Carolina
If the vendor 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 his knowledge, he is responsible to the vendee in damages.
APPEAL fromBattle, J., at Spring Term, 1852, of CURRITUCK.Page 239
Case for 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 plaintiff ask defendant if the slave was sound, to which he replied that he was, so far as he knew; that plaintiff then inquired whether he could warrant him to be sound; that defendant said he would not, but plaintiff must take him as defendant had taken him. It appeared that 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. 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 (351) 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 plaintiff. Motion for a new trial; motion overruled. Judgment, and defendant appealed.
Health for plaintiff.Smith for defendant.
NASH, J.
The charge of his Honor was entirely correct. When an article of personal property is sold with all faults, the doctrine ofcaveat emptorcertainly 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 burden 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 common 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 aPage 240loss, and he acquires a gain, he is guilty of a fraud, 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 (352) 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 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 thescienter, 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 bySchneider v. Heath, 3 Camp., 505. The words ofChief Justice Mansfieldare 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. No error.Cited: Lunn v. Shermer,93 N.C. 169;Whitmire v. Heath,155 N.C. 307.
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