Huckabee v. Albritton , 10 Ala. 657 ( 1846 )

GOLDTHWAITE, J.

1. The principal question here is, whether the defendant can maintain his defence for a fraud practised in the sale of the slave, when it is shown he accepted a warranty to a certain extent only, and not covering the particular defect from which the injury arises. Since the decision of Cozzens v. Whittaker, 3 S. & Porter, 322, this can scarcely be considered, with us, as an open question, as it was there held, an action on the case was sustainable for the deceit, in falsely representing the qualities of the slave, although the defendant was bound by an express warranty, in respect to the title and soundness. That decision is sustained by numerous adjudications elsewhere, and we are satisfied it rests on principles which cannot be shaken. [See also, Cowen & Hill’s Notes, 1475, and cases there cited.]

2. It is said however, the charge of the court was not warranted, inasmuch as the evidence [before the jury, did not show, or tend to show, the plaintiff knew the slave to be unsound at the time of sale. It must be conceded the proof in this particular was not so satisfactory or full as to render it certain a fraud was practised, but we cannot say it is so entirely insufficient as to raise no presumption of knowledge in the seller. It is scarcely possible one could own a diseased slave long enough to acquire a knowledge of his habits of' complaining, without ascertaining the fact of disease, and in this view, if no other, -the evidence wás proper to go to the jury. If the fact of knowledge was controverted, it would have been the proper course for the party to have requested a particular charge that this was essential, to enable the defendant to resist the payment for the slave on the ground of fraud. No such instructions were asked, and we are unable to discover any error in the charge which was given.

3. The same general observations apply themselves to that portion of the argument which insists the defendant was not entitled to a verdict on the ground that the fraud, if any, was waived by the subsequent promise to pay the note, when all the facts were known to the party. However strong such circumstances may be to induce the conclusion that no fraud was practised, it is only in that view that the admission is available to the other party. The rule upon this subject, as recognized by the decisions of this court in McGowan v. Garrard, 2 Stew. 480, and Langdon v. Roane, 6 Ala. 518, is, that a party will not be permitted to alledge fraud, when he has given the particular security, with a full knowledge of all the circumstances from which the fraud is afterwards inferred. We are not aware that a new promise to pay a note, obtained by fraudulent representations, will have the effect to prevent the party from afterwards insisting on the fraud as a defence, especially when the promise has led to no action by the opposite party. [Clements v. Loggins, 2 Ala. R. 514.]

4. The charge requested by the plaintiff, in our judgment, was properly refused. The circumstance that the purchaser was willing to purchase the slave without a warranty of soundness, may have been induced by the false representations of the seller, or by his fraudulent concealment of known defects. In either event, it is no answer to the fraud, to say that the party consented to receive a bill of sale without warranty. The bill of sale may be precisely as the parties intended it to be, without the pretence of mistake or fraud in its execution, yet if the purchaser was induced to enter into the contract evidenced by it, through the fraud of the seller, it offers no impediment to a recovery. [Cowen& Hill’s Notes, 1485, and cases there cited.

On the whole, there is no available error in the record.

Judgment affirmed,