Fagan v. . Newson ( 1826 )

Strictly speaking, the injury charged in this declaration is, that the parties being in contract for the sale of a tract of land, the defendant affirmed that certain lands were his, and a part of those they were contracting for, well knowing that they were not, and the plaintiff, being an unlettered man, and believing the false representations of the defendant, contracted with him for the purchase of the whole tract, and paid him therefor the sum of $300, and this action is not brought to recover back the money paid, as upon a consideration which has failed, thereby disaffirming the contract, but for a deceitful representation in making it, thereby affirming its continuance. It is therefore, in truth, an action brought for the loss of a good bargain, which I believe it is well settled cannot be sustained.Flureau v. Thornhill, Blk., 1078.

The injury really sustained is that the defendant cannot or will not perform his contract which gives an action upon the contract, not an action in deceit for an imposition. If the defendant had imposed the property, that is, had passed the estate under this deception (other things out of the way), an action might be supported; but no estate has yet passed, at least for the two acres. The only injury which the plaintiff has sustained is either the loss of a good bargain, the breach of contract to be compensated in damages or the loss of the money which he paid; if he has suffered any other, I am unable to perceive it; neither of which can be redressed in such an action as this. The case made in this declaration only resembles the first, which gives no cause of action. If the plaintiff still insists on his contract, an action is open to him; if he wishes his money back, he can recover it in an action for money had and received. As to damages, which the plaintiff has sustained by paying his money, the restoration of the same sum with interest is in law a compensation.

Judgment reversed; new trial.

Approved: Saunders v. Hatterman, 24 N.C. 32; Fields v. Rouse, 48 N.C. 72;Lytle v. Bird, ib., 222; Capehart v. Mhoon, 58 N.C. 178; Walsh v.Hall, 66 N.C. 233; Etheridge v. Vernoy, 70 N.C. 713; May v. Loomis,140 N.C. 357.

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