Opinion
(December Term, 1843.)
1. To charge persons with a conspiracy to cheat and defraud a third person, there must be a collusion and participation in the scheme or its execution. Mere silent observation and acquiescence are not sufficient.
2. Unless the persons charged, by some deed or word became parties to the plot to cheat, they could neither have influenced the acts of the persons defrauded nor contributed to his losses; and, therefore, they are not liable to his action.
3. One may be bound to speak the truth concerning any matter or thing with which he or his rights are connected and not suffer another to deal respecting them under a delusion; but in respect to matters with which he is in no wise concerned or connected, he is not charged with the legal duty of preventing mischief to others by communicating what he knows, but he may be silent.
APPEAL from Manly, J., at Fall Term, 1843, of STOKES.
Morehead for plaintiff.
No counsel for defendants.
Trespass on the case, in which the plaintiff declared against the defendant for conspiracies with one Edward Bouldin: (1) To entice away his daughter and marry her to the said Edward; and (2) to defraud him (the plaintiff) out of certain moneys by inducing him to become surety for the said Edward, he being insolvent.
It appeared on the trial that Edward Bouldin, leaving a wife and family in the county of Caswell, had removed to Guilford, and there, under an assumed name and representing himself to be a wealthy planter from the State of Mississippi, had married the daughter of the plaintiff. There was no other evidence on the first count in the declaration.
On the second count, there was evidence tending to show a knowledge on the part of the defendants (who are his brothers and brothers-in-law, respective) of Edward Bouldin's marriage under an assumed name in Guilford and of the delusion under which the plaintiff was acting as to his true character and condition. Other evidence was likewise (62) before the court tending to establish connivance and aid, on the part of the defendants, in keeping up this delusion, and particularly in procuring the plaintiff to become surety upon a note of the said Edward, which the plaintiff subsequently paid. The testimony was circumstantial and prolix, and it is not deemed necessary to report it at length.
The court charged, that to make out a case to justify a recovery against the defendants, it was necessary for the jury to be satisfied that they acted in concert with the principal character, Edward Bouldin, and with a view of enabling him to impose upon the plaintiff in the particular complained of. It would be insufficient that they saw and understood his contrivances and kept them secret, if they neither did nor said anything to aid in making those contrivances successful, and with intent so to aid. If they neither did nor said anything intended to keep up this delusion or to lead him off from any inquiry which he might else have made to undeceive himself, the defendants would not be guilty of a conspiracy, so as to make them liable to the plaintiff's action.
The jury found a verdict in favor of the defendants, and the plaintiff, having failed to obtain a new trial, appealed to the Supreme Court.
Considering the relation between the parties, it might have required but little evidence over and above a knowledge by the defendants of the plans of the principal actor and their observation of the execution of them to satisfy a reasonable mind of the actual participation of the defendants in the plans, either in their formation or execution. But that is not the question presented here. The evidence being — as might be expected — circumstantial, it was left to the jury to deduce therefrom, as was their province, such inferences as to the facts of the alleged conspiracy as in their judgment it authorized. The court was not asked to give any particular instructions in aid of the jury in that part of their duty. It was, therefore, only incumbent on the court to inform the jury what kind of conduct by the defendants would (63) make them conspirators with Edward Bouldin, so as to render them liable for the deceits and impositions practiced on the plaintiff by that person. Such directions the court gave, and after considering them, we own that we are unable to perceive that they are erroneous.
As we understand them, it is laid down, that if the defendants aided Edward Bouldin by saying or doing anything or in any wise acted in concert with him to deceive the plaintiff as to the condition and character of that person, or to keep up the delusion of the plaintiff on those points, or to induce or to enable Edward Bouldin to induce the plaintiff to become his surety, that would amount to a conspiracy and fraud; but that if the defendants merely knew of the designs and contrivances of the principal party to impose on the plaintiff, that would not be a conspiracy, though they did not, as they might, disclose the matter thus known by them. The question, then, is whether a collusion and participation in the scheme or its execution, something beyond silent observation and acquiescence, be not necessary to charge these defendants. We think it is. There are many cases to which is strictly applicable the common saying that "silence gives consent," and a person is bound as to his own rights by not making them known to one innocently dealing for an article. Qui potest et debt vetare, jubet, si non vetat. Such is the principle, when one ought, as a legal duty, to give notice of his own rights when one is about to contract with another who he knows is under a false impression as to some material fact influencing the person to contract. Thus, if one man sees another buy his estate and will not make known his title, it is a fraud, which justly renders the contract as binding on the owner as if he had made it himself. So, for example, if these defendants had themselves taken an obligation from the plaintiff as the surety of Edward Bouldin without informing him that he was not the person the plaintiff took him to be and making known his true character, such silence might be fraudulent, and the plaintiff be (64) relieved from the obligation. Indeed there the defendants would be parties to the act from which the injury to the plaintiff arose.
There are, however, many cases in which silence is innocent — at least, legally speaking — although another may suffer in consequence of it. A person is always bound to refrain from willful falsehood which may produce a prejudice to another. He may also be bound to speak the truth concerning any matter or thing with which he or his rights are connected, and not suffer another to deal respecting them under a delusion; but in respect to matters with which he is in no wise concerned or connected, he is not charged with the duty of preventing mischief to others by communicating what he knows, but he may be silent. If one sees another about to fall into a pit, ordinary humanity would induce him to cry out and warn him of the danger, but the duty is of that imperfect kind, of which conscience is the only sanction; it creates no legal obligation, nor its omission any responsibility for consequences. If one recommend an insolvent person as worthy of credit, it is a fraud which subjects the perpetrator to damages; but if he be asked as to the credit of such a person, he may decline answering, although he knows of his insolvency, and that the inquirer is about to deal with him. Much more may he refrain from speaking when he is not asked to do so. The law does not require a person to intermeddle in other people's business, nor interpose to protect one man from the wrong of another, with neither of whom is he connected as to the transaction in which the wrong is sustained. One is at liberty to attend to his own affairs and leave others to inquire as they can and judge for themselves in matters that concern them alone. If these defendants were merely passive witnesses of the deceits of Edward Bouldin, they were his deceits and none of theirs. There must be some union of views, or confederation, between two or more to constitute a conspiracy. Unless by some deed or word they became parties to the plot to cheat the plaintiff, the defendants could (65) not have influenced his acts nor contributed to his losses, and, therefore, they are not liable to his action.
PER CURIAM. Affirmed.
Cited: Shields v. Bank, 138 N.C. 188.