Opinion
(December Term, 1847.)
When a vendee takes an article at his own risk, or with all faults and defects, the vendor is not responsible for not disclosing any faults or defects he may know to exist in the thing sold, unless he makes use of some artifice or practice to conceal the faults or defects or to prevent the purchaser from discovering them.
APPEAL from the Superior Court of Law of BLADEN, at Fall Term, 1847, Caldwell, J., presiding.
No counsel for plaintiff.
Strange, with whom were W. Winslow and D. Reid, for defendants.
This was an action on the case for a deceit on the part of the defendant in trading a note to the plaintiff for a horse. It appeared in evidence that a conversation took place between the parties about the trade of a note held by the defendant on one ...... and endorsed by one Worthington, for $68, in which the defendant said the note was perfectly good. This conversation took place at the house of the plaintiff, and, (4) shortly after, the parties went to look at the horse, then at the house of a neighbor. It also appeared for the plaintiff that, after the trade and when the defendant had just got the possession of the horse, he remarked, "There is a good horse I have got for a note on Jesse ..... and John Worthington," mentioning the amount of the note; upon which a bystander said to the defendant, "The note is not worth a cent; I would not give a cent for it." The defendant then said, "Whether it is worth a cent or not, I have got a good horse for it"; and in another part of the conversation he said "he had got something, when he expected to get very little, and the horse was clear gain to him." It also appeared that the plaintiff lived about twenty miles from said ...... and Worthington, and that they were insolvent at the time of the trade, and had been for some months before.
For the defendant it appeared that when the parties went to the house where the horse was, they commenced chaffering about the note for the horse; the defendant said the note was genuine and that he would warrant that it was signed by the parties, and in speaking of the maker and endorser the defendant said, "You know that Daniel Baldwin says that ...... looks like a man that would pay his debts, and as for Worthington, you know him as well as I do." The plaintiff then asked the defendant to endorse the note, which he refused, saying that he was a trading man and dealt in notes, but he would not endorse the note of a wealthy man in the neighborhood, naming him; and said to the plaintiff if he took the note he must take it at his own risk. The plaintiff then took the note, and the horse was shortly thereafter delivered to the defendant.
A witness for the plaintiff proved that the defendant, in his trading, sometimes visited the neighborhood of the parties to the note.
The court charged that to entitle the plaintiff to a verdict (5) he must satisfy the jury that ...... and Worthington were insolvent at the time of the trade, and that the defendant knew it and concealed it from the plaintiff; and though it might be true that the plaintiff agreed to take the note at his own risk, yet if he was ignorant of the condition of the parties to the note, and the defendant knew it and concealed it, it would be a fraud on the plaintiff, and he would be entitled to their verdict.
The jury returned a verdict for the plaintiff. A motion for a new trial was made, because of misdirection, which was refused, and the defendant appealed.
The first part of his Honor's charge to the jury is unobjectionable and right in law; but when he proceeded to say, "Though it might be true that the plaintiff agreed (6) to take the note at his own risk, yet if he was ignorant of the condition of the parties to the note, and the defendant knew it and concealed it, it would be a fraud on the plaintiff, and he would be entitled to their verdict," we think he erred.
In Mellish v. Matteux, Peaks' N. P. Cases, 115, Lord Kenyon laid down the law as his Honor did in this case; for he said, "with all faults" means with all faults unknown to the vendor; but in Baslehole v. Watters, 3 Camp., 154, Lord Ellenborough overruled the case of Mellish v. Matteux, and his decision is confirmed by the whole Court of Common Pleas in the case of Pickering v. Dawson, 4 Taunt., 778. The meaning of selling "with all faults" is that the purchaser shall make use of his eyes and understanding to discover what defects there are. But the vendor is not to make use of any artifice or practice to conceal faults, or to prevent the purchaser from discovering a fault, which he, the vendor, knew to exist. When the vendee takes the article at his own risk, or with all faults and defects, the vendor is relieved from disclosing any faults he may know to exist in the thing sold; the maxim caveat emptor then applies.
PER CURIAM. New trial.
Cited: Pearce v. Blackwell, 34 N.C. 61.
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