Opinion
December Term, 1827.
From Rutherford.
1. Moral turpitude in the defendant is necessary to charge him in an action for a deceit.
2. Where the defendant, in an action for a deceit in the sale of a slave, had been informed that the slave was unsound, if he does not credit the fact, he is not bound to disclose it.
CASE for a deceit in the sale of a female slave. On the trial it appeared that the negro had belonged to one Rutherford, who died intestate in 1819. Letters of administration upon his estate did not issue until January, 1823, when the defendant, being appointed administrator, took the personal property into his possession and sold the negro in dispute to the plaintiff, in February, 1823, at public auction. During the interval from Rutherford's death until the appointment of the (351) defendant, the negroes belonging to the estate had been hired out under an order of the county court. The plaintiff proved by the person who hired the negro for the year before the sale, that in the first part of that year her health was very bad, and that she was unable to work, but that in the latter part of it she was better, and rendered him some services; that when he returned the slave to the defendant, in January, 1823, he informed the defendant of this sickness, and on that account claimed a deduction from the hire. The witness also swore that at the same time he offered to keep the slave until the sale, which was then advertised, on the same terms he had given for the year which was then just past.
Attorney-General and Devereux for the plaintiff.
No counsel for the defendant.
His Honor, Judge Norwood, instructed the jury that if they believed the defendant, at the time of the sale, had forgotten the information given him by the witness as to the health of the negro, they ought to find for him. But if they collected from the testimony that such information had been given, and not forgotten by him, and that he did not communicate it to the plaintiff, his disbelief as to the truth of the information would not exonerate him from liability, which would depend on the fact whether the negro was well or not.
A verdict being returned for the plaintiff, the defendant appealed.
This action is founded on a fraud; to support it, there must be either a fraudulent misrepresentation or a fraudulent concealment. It is not sufficient that the representation be false in point of fact; the defendant must be guilty of a moral falsehood. The party making a representation (352) must know or believe it to be false, or, what is the same thing, have no reason to believe it to be true.
Concealment ex vi termini imports a knowledge of the thing concealed; for a person cannot be said to conceal that which he does not know, and silence as to a fact which the party does not believe to exist cannot be said to be a fraudulent concealment. I cannot therefore agree with the judge below, that the defendant was bound to declare, and was guilty of a fraud if he did not declare, that which he did not believe to exist, although he had been told that it did exist. It should have been left to the jury to say whether the defendant had a knowledge of the unsoundness of the negro.
I disturb this verdict with great reluctance, because I believe it meets both the law and the justice of the case.
PER CURIAM. Judgment reversed.
Approved: Stafford v. Newsom, 31 N.C. 507; McIntyre v. McIntyre, 43 N.C. 297; Gerkins v. Williams, 48 N.C. 11.