M'farlane v. Moore , 1 Tenn. 174 ( 1805 )

[S. C., ante, 32.] Rule for New Trial. — This was an action upon the case, plea non-assumpsit. M'Farlane had purchased a negro woman of the defendant for a full price, and took a bill of sale warranting the property of the negro.

This was an action upon the case in the nature of deceit, for that the defendant assumed upon himself that the negro was sound, when in fact she was not. The evidence showed that the negro had been in a sickly state before the plaintiff purchased her; and that the defendant knew that she had been unwell. Doctor Irvin, a witness for the plaintiff, proved that he had been called to the negro soon after the plaintiff purchased her; that he found her in such a state occasioned by the improper administration of mercury, that he thought her incurable, and that the complaint had been of considerable standing, that the woman afterwards died. The questions for the consideration of the jury were, first, whether there was a defect in the property sold; secondly, if a defect existed was it a material one? thirdly, did the defendant know of the defect before the sale? They found all these facts in favor of the plaintiff, and have assessed his damages to the value of the negro. It has been objected that parol proof has been improperly received; that the whole extent of the contract is embraced by the bill of sale; and nothing can be implied or presumed. The proposition in the manner in which it is laid down cannot be maintained. In no instance can evidence be received to contradict a written agreement, nor can such evidence be received to detract from or add to any part of a contract which was within the view of the parties when contracting; these principles, however, do not touch cases where fraud has been practised. As where an illiterate person executes an instrument of writing which he was incapable of reading, and which was read to him otherwise than it really was written. Suggestio falsi and suppressio veri are sufficient to invalidate a contract on the ground of fraud. In these cases, too, parol proof is receivable. The meaning of the contract evidenced by the bill of sale was, first, to convey the property in the negro, and, secondly, to warrant that property. No other ideas can possibly be collected from the writing. Nothing can be found in it respecting the health or soundness of the negro. The reception of parol proof to show the soundness or unsoundness of the woman at the time of sale does not contradict or vary the bill of sale. It is a fact collateral to its import, and, agreeably to the case in 8 Term Rep. 379, the evidence ought to be received.

The old books on the sale of property state that where a defect in the property sold was visible the buyer must notice it, nor will he be permitted to have any redress on that account; otherwise, where the defect is invisible, and the seller knew of such defect. The civil law was different in this respect; it made the seller responsible for any invisible defect, whether known to him or not, provided a full price given. Conformably to the principles of the civil law, we find cases of considerable authority, particularly the one cited in Taylor; 1 Call, 316, per Lyons, J.; and 2 Swift's System, 120. The general law of contracts is, that where a consideration happens to fail, the party against whom it operates shall have redress.

Where a person purchases property which to all appearance is sound and free from defects, and gives a full price, it is obvious that he bottoms his contract upon the consideration of sound property; and reason seems strongly in favor of his getting sound property, or such a compensation as will make up the difference.¹

The decisions in the old books must have proceeded upon an idea that defects usually arose from causes beyond the control of the owner; that property somewhat defective might be transferred from hand to hand without the knowledge of the persons selling; that a loss must fall somewhere, if a recovery is made; and where no fraud appeared by suppressing a knowledge of invisible defects, it was as reasonable that the loss should fall on the last purchaser as on any other person through whose hands it might have passed. Which is the better opinion it is not now necessary to determine. There was evidence that the defendant knew of the defect in the woman previous to the sale. If he did, and did not disclose it to the buyer, he ought to be responsible. The buyer was bound to use ordinary care only, and if by that the defect in the property was not visible he surely ought not to bear the loss. But the principles of justice and morality were imperative on the seller to make known the real state of the property. An objection has been made to the form of action. If an action could be maintained, it is urged that it ought to have been covenant, upon the bill of sale, and not case. Covenant could not be supported because there was nothing agreed respecting the soundness of the negro in the bill of sale. No instance of implied covenants is recollected in all the books, except in the sale of real property where the words dedi et concessi are used.² Perhaps there may be a few other instances of this kind, but they are rare. Though the bill of sale does not cover the case, the principles of justice, of reason, and the common law will.³ By the principles of the common law there can be no injury without a correspondent remedy. To support an action on the case, it is not necessary that it should be supported by instances or precedent: but sufficient if covered by principle. See 3 Term Rep. 63; Cowp. 37; 1 Johns. 414, 503

WHITE, J., absent. Rule discharged.

¹ Vide 2 Bay, 17, 19, 880. This is not the law as appears from the cases referred to.

² 2 Wil. ed. Bac. Ab. 65, n. 77, and 79, n.; 2 Hay. 127.

³ See B. E. E. 499; 1 N. Y. T. 17; 1 Johns. 274; 2 N. Y. T. 48; Ib. 202; Addis. 92; 2 Day, 176; 4 Johns. 421: 4 Mass. 502.