Wooten v. Calahan , 32 Ga. 382 ( 1861 )

By the Court.

Lyon, J.,

delivering the opinion.

This was an action for damages, that the plaintiff therein alleges he sustained, by reason of the deceit and misrepresentation practised by the defendants upon him, in the sale of a negro woman named Fanny, in this, that the defendants represented the negro to be sound, when she was not sound, but was afflicted with a disease of which she subsequently died.

1. To charge one with damages resulting from representations of this character, it must appear that the representation was false to the knowledge of the party making it, or that the representation was made with an intention to deceive the purchaser by the person making the representation, he not knowing or caring whether the representation was true or false; but if the representation was honestly made and believed at the time, by the party making it, though not true in point of fact, such representation does not furnish a ground of action. Manes vs. Kenyon, 18 Ga. R., 202; Wooten & Goolsby vs. Calahan, 26 Ga. R., 367; Bennett vs. Terrell, 20th Ga. R., 86; Broom’s Comm., 342 to 349.

2. Herein lies the error of the Court in the charge given and refused, that “if the defendant, Wooten, in making the representation complained of, although he was a physician, an adept, or one skilled in the subject more than the one with whom he was dealing, did not know that the same was false, nor made it with an intention to deceive and mislead the púrchaser, although it might in point of fact be false, yet he is not liable for any injury resulting therefrom. The Court charged to the contrary, and this was erroneous.

The fraud and misrepresentation alleged, on which a recovery is solicited, are, that no clause of a warranty of soundness was inserted in the bill of sale, and when the negro was being exhibited to the plaintiff at the time of sale, and she complained of being sick, the defendant replied instantly, that she only had a cold, and was better of that. This, it is insisted, was false. There is no evidence that it was a part of the agreement of sale that the soundness of the negro was to be warranted. To have entitled the plaintiff to a recovery, on the ground of a misrepresentation as to the real condition of the negro, it was necessary to have shown affirmatively, that the representation that the negro only had a cold, and was better of that, was false; and that Wooten knew it to be so; or that he made it recklessly, with an intention to defraud the plaintiff. There is no evidence that the negro, at the time of the sale, was afflicted otherwise than with a common cold; certainly none, that she was at that time laboring under a disease of as serious and dangerous character to a negro as that of pneumonia, but she was well enough to travel, in an open cart, from two to two and a half miles in the evening of the 29th of January, and that when she arrived at the place of destination she was sick, and that night grew worse. It did not strike young Calahan that she was so sick, before starting, as to make her exposure at the time dangerous, and that would have struck the dullest observer had she then had pneumonia. But allow that she may have had pneumonia at the time of the sale, there is no evidence that Wooten, the defendant, knew the attack was of that serious character, or that he made the statement recklessly, for the purpose of defrauding the plaintiff. On the contrary, the trade, when made, was a consummation of a negotiation commenced when the negro was unquestionably sound and well—a circumstance that goes far to repel any presumption of fraud that might arise from her subsequent and immediate illness. Great stress was placed, in the argument, on two circumstances manifested by the evidence. One is, that when the negro said she was sick, Wooten instantly replied, that she only had a cold, etc.,, and the other, that when Wooten wrote the bill of sale “ he slided it along on the table ”—that is, we suppose, he wrote the paper'on the table, in presence of the purchaser and his agent, the witness, and when it was finished, pushed, or slided it to the agent, who had made, and who seems to have been the only active party in it, for examination. If either of the circumstances, light and trivial as they appear to us, as presented in the record, were of a suspicions nature, as pregnant circumstances of fraud, they ought to have so struck the party and his agent, or witness, at the time, and stayed the trade, and not left to be developed by the subsequent death of the negro. In every view of this case the verdict was wrong, against the law, and against the evidence.

The case was really adjudicated when it was hbre before, (see 26 Ga., 367,) when all the facts were out, a verdiet for plaintiff, and a motion for a new trial, as now. The-Court had charged the jury on that trial as in this, that “ it was immaterial whether Wooten knew the representation to be false or not; that if he knew them to be false, it was a fraud in fact, and if he did not know them to be false, it was a fraud in law.” This Court sent the case back on that ground alone, holding, so briefly that the decision ought not to have been misunderstood, that “ in deceit, it is indispensable that a scienter be both alleged and proved.”

Let the judgment be reversed.