Newsom v. Jackson , 26 Ga. 241 ( 1858 )

By the Court.

Lumpkin, J.

delivering the opinion.

[1.] The judgment of reversal in this case is put upon the ground that the witnesses, P. P. Bond and J. Bond, were permitted to testify against the objections of defendant’s counsel. That the negroes in the possession of P, P. Bond were the separate estate of his wife, and not liable to the husband’s debts, whereas the contract of settlement was certainly the highest and perhaps the only proof which was admissible as to the title of this property. In the narrative which is given in the bill of exceptions of the facts which transpired on the trial of this cause, no statement is made that the defendant objected at the time to the introduction of this testimony. But in the motion for a new trial, it is set forth that, the objection was made. And in the judgment of the Court overruling the motion, on all the grounds taken in it, Judge Allen certifies that, on the trial of the cause, he“ ruled and charged, and refused to charge, as is stated in the grounds taken for a new trial.” A wise precaution — -the omission to observe which has worked an injury, no doubt, in some of the cases which have come before the Court since the Act of 1856 was passed.

Upon this ruling, then, there can be no doubt the defendant is éntitled to a new trial. The testimony of the two Bonds constitutes one of the most material facts in the cause; for the main misrepresentation imputed to Savage is, that he asserted that P. P. Bond was the owner of the slaves in his possession. Whether he is or is not, depends upon the deed of settlement; parol evidence of the contents or legal effect of which was allowed to go to the jury.

This is an action of deceit, and it is exceedingly questionable whether it survives against the legal representive of Caesar A. Savage. Had the property of Jackson been added to the estate of Savage, as in cases of conversion, the suit might have survived, though sounding in tort. But it is not pretended that such was the nature of the transaction. The writ charges no collusion or combination for this purpose ; but we pass this point by, as it does not seem to have been directly decided by the Court below.

[2.] Mr. Butler, in the very thorough argument which he submitted in behalf of the plaintiff in error, has, we think, gone very far to establish the following propositions: That the case of Pasley vs. Freeman (3 T. R. 51, 2 Smith’s Lead, Cas. 55) and the cases following that decision, do not go the length of sustaining' this action. All these cases were confined to a single transaction, and the liability was not extended beyond it; and not one of them, like this, sought to bind 'the defendant during the business transactions of eleven months; and for an unrestrained credit given on an unlimited account, Haycraft vs. Geary, 2 East 92; Eyre vs. Dunsford, 1 East 318; Tapp vs. Lee, 3 Bos. and Pull. 367; 1 Taunton 563.

That in the case at bar there was an utter want of diligence, such as was incumbent on the plaintiff to use; and his negligence was in no manner caused by the Act or practices of the defendant. That where the affirmation is such as to leave the other party free to exercise his own judgment or prosecute his own inquiries in order to ascertain the truth, and when by common prudence he might protect himself against imposition, it is his own fault if he fail to do so, and no right of action arises. 1 Story’s Eq. Jur. sec. 199; 2 Kent’s Com. 485, 487; 2 Parsons on Contracts 268; Sug. on Vend 2, 3, 4; Peasley vs. Freeman, 3 T. R. 51; Sanders vs. Hallerman, 2 Iredell 34; Vernon vs. Keys, 12 East 632; Duke of Beaufort vs. Neeld, cited in note to Burns’ Legal Maxims, top p. 490; Gallager vs. Bunnel, 6 Com. 352; Salem India Rub. Co. vs. Adams 23 Pick. 265; Downs vs. King, 1 Stark R. 75 (12 E. C. and R.) If a tradesman gives an indiscreet and ill-judging credit, he cannot make the referee answerable for any loss occasioned by it. 5 Carr and Pa. 363 (Corbett vs. Brown; ) and that the amount, for which the representation intends to say, the person for whom it is made is good, should appear with reasonable certainty in the representation.

What are the facts here ? Jackson doing business in the same place with Bond, and having daily opportunities of seeing his management; at no time* and no where, used any effort to ascertain the true condition of Bond or state of his circumstances. But in the language of one of the witnesses (Thornbury) relying on Savage as security for Bond, continued to credit Bond for nearly a year, intending to hold Savage liable for the price of the goods. I need hardly remark that if this were the understanding, that Savage had become security for Bond, then the case is clearly within the statute of frauds, and this suit cannot be maintained.

Neither Courts of Equity nor Courts of Law will aid parties who will not use their own sense and discretion in matters of this sort. 1 Story’s Eq. Jur. 199.

Chancellor Kent (2 Com. 485, 487) says: “ The common law affords to every one reasonable protection against fraud in dealing; but it does not go to the romantic length of giving indemnity against the consequences of indolence or folly, or a careless indifference to the ordinary and accessible means of information. Itreconcilesthe claims of convenience with the duties of good faith, to every extent compatible with the interests of commerce.” The adjudged cases coincide with the elementary authorities as to these principles; and that, too, as between vendor and vendee. Should not a still stricter rule be applied and enforced when it is sought to charge a third person for the debt or default of another?

Pasley and Freeman was the first case where an action was sustained upon a false representation made by a third person, and one who was not a party to the contract; an opinion not unanimous, but in which there was a divided Court, made in 1789, several years after the date even of our adopting statute, and many years subsequent to the Revolution; one which has been repudiated by many able Courts and Judges, cordially supported by none, and very grudgingly by those who have followed it as a precedent. The principles of which were finally discarded by the British Parliament as an evasion, if not a repeal, pro tanto, of the 4th section of the Statute of Frauds; we can hardly feel ourselves bound to rely upon it in this State. And however anxious we may be to frown down any violations of the rules of morality in the dealings which men have with each other, still something more than a departure from these rules is necessary to maintain an action at law.

In ninety-nine cases out of a hundred, the person giving the credit does not look to the referee; for if he did, he wmuld see to if that he was bound by some writing for the undertaking of the other. He does not require this for the simple reason that he knows the referee would refuse to become security. It is the last thing he intends to do. Indeed, this and ail such cases are an afterthought. An attempt to enforce a liability that never existed, or else to charge one upon a contract void by the statute.

Judgment reversed.