Small v. . Pool , 30 N.C. 47 ( 1847 )

The case presents but a single point. The plaintiff claims damages of the defendant for a fraud in the sale of a slave named Tamar. In order to show the amount to which he was entitled the plaintiff introduced witnesses, who testified that the difference between such a slave as Tamar was, If she had been sound, and such as she actually was, was one-half. So far as is disclosed by the case, this was all the evidence upon that point given to the jury. The defendant offered to prove what the plaintiff gave for the negro, in January, and what he sold her for in the succeeding July in Richmond. This evidence was objected to by the plaintiff and rejected by the court. There was a verdict and judgment for the plaintiff, and the defendant appealed. The refusal of the judge to receive the evidence offered by the defendant is the error of which he complains. We think his Honor erred, and that the testimony ought to have been received. In actions sounding in damages the jury, in general, have a discretionary power in awarding them, subject to the control of the court. But in a case of deceit in the sale of property the law has adopted as the rule by which (48) the jury are to be governed, and the damages estimated, the difference in the value of the article sold, as sound or unsound, at the time of the sale. The price given by the purchaser, and that for which he sold it, do not, conclusively, fix the amount of damages. But it is competent as some evidence of the value of the property at the respective times of the purchase and the sale, and as such the jury had a right to have it. Clare v. Maynard, 32 E. C. L., 714. It does not establish the value, but may aid and assist the jury in their inquiries upon the point. More particularly was it admissible in this case, as the plaintiff had furnished the jury with no evidence upon which they could understandingly act.

He did not show what sum Tamar was worth at the time of the sale, either as sound or unsound.

PER CURIAM. Judgment reversed, and a venire de novo awarded.

Cited: Boggan v. Horne, 97 N.C. 270.