
    
      Robert E. Russell vs. John E. Peay.
    
    i. Where, in an action brought by the purchaser against the seller, for the breach of a covenant, in the sale of a quantity of the monis multicaulis at a specific price (18 cents,) per tree, the proof was that in making the sale, the seller told the purchaser that “he knew nothing about the pribe of the trees, and would depend on him,” to which the latter replied, “he was giving or would give the full value at the northj they were then a drug”— when in fact the trees were worth more at the north, the spring preceding the purchase, than the price stipulated to be given, and in the autumn of the same year, when the sale was effected, more than double that pricej coupled with the fact that the purchaser had just besfore the sale returned from the north; and had also admitted that he told defendant the trees were worth from 13 to 15 cents, and that he did not know that he was bound to tell him the precise price, the Court refused to order a new trial, the verdict having been for the defendant.
    
      Before O’Neall, J. at Fairfield, Fdll Term-, 1842.
    This was ari action on a covenant for the sale of all the Imorus multicaulis trees growing on the plantation of the late William Ellison, deceased, except one half of the standard trees.
    The following proof w'as given in the case:
    John A. Peay, who subscribed the contract as a witness, proved that he saw it executed: the body of the covenant was, he said, in the hand writing of the defendant. It was signed at the defendant’s house: it was written when he arrived, and signed soon afterwards. On bis cross examination, he said he was at the defendant’s house the night before ; he found the plaintiff there, and heard the conversation about the trade. The plaintiff said he was lately from the North, and knew their value. The defendant said he depended upon him for the value: he (the plaintiff) said he would give, or was giving, the full price at the North. He thinks he (the plaintiff) said they were a drug at the North. The defendant said he knew nothing about the price of the trees, and would depend on him. This witness said the trees were growing on Mr. Ellison’s plantation, who died shortly before the trade. — In his examination in reply, he said the plaintiff was at the defendant’s house when he got there the evening before. He lived with his uncle, John Peay, who lived 8 miles from the defendant. The day before the trade, he had been at his father’s, 20 miles from the defendant’s. He came to John E. Peay’s about sun-down, or between that and dark. He thinks the plaintiff was to give 7 cents per tree.
    (The contract provides that the plaintiff shall pay for the trees at 18 cents each, and is to take all, (except half the standard trees,) 6000, more or less.)
    Dr. John J. Myers proved that he had often seen the trees. There were 6 or 8000. There were about 1000 trees 5 feet high — 600 or 1000 6 or 7 feet high — the balance from 3 to 4 feet. Independent of the trees of which he had spoken, he said there were 600 standard trees much larger.
    
      State of South Carolina, Fairfield District.
    Know all men by these presents, that I, John E. Peay, administrator of William Ellison, deceased, of said district, have bargained and sold to R. E. Russell, of Columbia, So. Ca. all the morus multicaulis mulberry trees now growing on the plantation of the late William Ellison, of said district, and state above mentioned, with all the branches as they grow on them, (except half of the standard trees,) and to deliver them to R. E. Russel], at Columbia, So. Ca,, on or before the twentieth of November, in bundles well packed in straw, and in good order.
    
      R. E. Russell, on his part, agrees to pay, or cause to be paid, unto John E. Peay, administrator, eighteen cents for each and every one of the above mentioned mulberry, for six thousand, more or less, so delivered in good order and condition, in two separate notes of equal size, one sixty days after date; the other ninety days after date of delivery of said trees, with two good endorsers to each note. Witness our hands and seals. Sept. 27, 1838.
    JOHNE. PEAY, [L. S.]
    R. E. RUSSELL, [L. S.]
    Witness: JOHN A. PEAY.
    After the trade with Russell, he saw at the defendant’s a large number of boxes containing the trees: one of the boxes would contain, he supposes, 1000 or more trees.
    The defendant, in a converation with him, after his sale to Russell, told him he was particular in having him (Russell) bound up tight. The defendant considered the contract to be a good one, and this was the then general opinion; but in a short time it was found that the trees were rapidly appreciating in value. The trees belonged to Ellison’s estate.
    About Christmas, he bought from the defendant 500 of the trees, at 25-100 per foot, making $500. Nicholas Peay, about the same time, bought 500 or 1000 ; a lady at his house bought $50 worth, at 2 cents an eye. Some of the trees, are still at Ellison’s place. The defendant, he said, told him he sold the trees to the plaintiff to raise money to pay Ellison’s debts. In the conversation with him, the defendant might have said Russell drew the contract, and he copied it. He told him that the plaintiff told him the price of the trees at the North, and from that he thought he was giving him nearly their value. Russell, Marks and Ellison, were all who were engaged in raising the morus multicaulis near to Winnsboro’. All the trees sold by the defendant were sold at private sale.
    Dr. June proved that he married a daughter of Mr. Ellison : he had often seen the trees, and thought there were between 6 and 7000. The defendant told him he had sold the trees, and made the contract as strong as possible. He did not pretend there was any misrepresentation. He thought it a good sale. He thinks the defendant told him that the night Mr. Ellison died, he wrote a letter to some one engaged in this morus multicaulis business, perhaps in Baltimore, for information as to the price, and that it was forwarded after his death. He (the witness) told the defendant, th..t he ought not to have sold, until that letter was answered. The defendant and the rest interested did not know the value. — The defendant told him, that the plaintiff told him he would give him the value, and that he depended on him. There were 250 or 300 standard trees.
    B. L, McLaughlin proved that in November or December, he bought 250 treess from the defendant, at 20-100 per funning foot. Dr. Myers and Peay bought at the same price.
    Joel Stevenson proved that he bought 50 multicaulis trees from the defendant, at 20 or 25 cents per running foot: the trees averaged 5 feet in height. The average price of trees was 20-100 per running foot from November to January.
    Dr. Myers proved that the standard trees were 8, 10, or 12 feet high, and were worth 10 times as much as the other trees.
    The plaintiff shewed that the defendant was the administrator of William Ellison, deceased. He made to the Ordinary the following statement of the sales of the morus multicaulis trees:
    10,000 trees sold to David H. Reid, $1968
    2933 feet at 25-100 to Peay, 733
    2914 “ to B. L. McLaughlin, 728
    554 “ to Dr. Myers, 138
    1552 “ to A. D. Jones, 388
    450 “ to Mrs. Goode, 112
    466 “ to J. B. Furman, 116
    323 “ to Joel Sherman, 80
    85 “ to P. Thornton, 25
    45 “ to S. A. Johnson, 10
    1Q00 “ to John A. Peay, 20Q
    
      to H. P. Muse, 200
    to John Whitaker, 200
    224 to J. J. Mickle,
    40 to Dr. Myers,
    20 to Miss Harvey,
    5 to Mrs. Scott,
    80 to Dr. Milling,
    40 to John A. Ross.
    $5307
    Here the plaintiff closed, and the defendant read in his defence the examination of Dr. Marks.
    He stated that in ’38, the year in which this contract was made, he was engaged in the culture oí the multicaulis. In the summer, he travelled to the North. In that region, the price in the spring was 25-100 per tree; in the autunjn the price was from 50 to 75 cents. The plaintiff also travelled, and returned about the death of Mr. Ellison. The plaintiff, he said, must have known the price of the multicaulis at the North. The purchase, he thinks, was within a week of the plaintiff’s return from the North. Trees were then worth from 50-100 to 75-100 In Columbia, he said, he did not know what was the price in November.
    Hugh Aiken proved that at the defendant’s request, he went with him to the plaintiff’s store. The defendant asked him, the plaintiff, if he intended to sue him on the sale of multicaulis trees 1 The defendant said he did not want any fuss ! — The plaintiff replied, “I do not want any !” The defendant asked the plaintiff, if he did not rely on him for the value of the trees 1 He asked him if he (the plaintiff) did not tell him they were worth from 13 to 15 cents at the North. The plaintiff said yes! He also said, he did not know that he was obliged to tell him the precise price!
    The defendant here closed. The plaintiff replied :
    Dr. Myers proved that from January to November, 1838, he had seen the northern prices for the multicaulis, in the American Farmer. He thought the plaintiff gave a fair price. He said the plaintiff raised a few of the multicaulis in the square opposite to the State House.
    The case here closed, and was very fully argued by Messrs. Myers and Gregg, for the plaintiff, and Messrs Black and DeSaussure for the defendant.
    The jury were fully and carefully instructed upon the law of the case, and the facts were fairly submitted to them. The jury found for the defendant.
    The plaintiff moved the Court of Appeals for a new trial, in the above case, upon the following ground:
    Because the evidence having been—
    That the covenant was drawn up by the defendant in his own hand writing, and duly executed by both parties — ■ That there were 13,400 M. M. Trees, the average height of each being 2 feet 9 1-2 inches, of which not more than 800 were standard trees—
    That the defendant failed to .deliver the trees according to the terms of the covenant, having previously sold them for $5336 70—
    That the price of such trees, at Columbia, on the 20th November, 1838, where and when, by the terms of the covenant, they were to be delivered, was 20 cents per foot—
    That the intestate, William Ellison, died about the 1st of September, 1838, having previously written a letter to Baltimore respecting the trees, which was sent on, either before his death, or immediately after—
    That the defendant was the son-in-law of William Ellison, and possessed as much general intelligence and information as the plaintiff—
    That some short time after the executionfof the covenant, the defendant said he had made a good bargain, and had drawn the writing tight so as to bind the4 plaintiff hard and fast.—
    That some time between the execution of the covenant, and the 16th of November following, probably about the middle of October, the defendant sold to David H. Reid, of Virginia, 10,000 of the trees, at 7 cents per foot, having taken therefrom the cuttings underneath.—
    That the price of such trees in the Middle and Northern States, at the time the covenant was executed, was about what-the plaintiff agreed to give the defendant.—
    That the plaintiff had cultivated such trees, upon a small scale, on a lot in Columbia, though his principal business was that of a gardener.
    That although the plaintiff had visited the Middle and Northern States that summer, he returned about the time of the death of William Ellison.—
    That the price of such trees rose rapidly towards the latter end of October, 1838. — -
    That the only representations made by the plaintiff to the defendant previous to the execution of .the covenant, were in relation to matters of opinion merely, and not matters of fact, to wit: the value of the trees; the plaintiff saying he would give defendant their value, and that what he offered was their value.—
    The verdict of the jury, setting aside the covenant, and finding for the defendant, was contrary to this evidence and the law applicable thereto, and was the result of the strong and repeated appeals made by the defendant’s counsel, to their sympathy and prejudice, in urging again and again that this was an action between the plaintiff and the widow and orphans of William Ellison, and for vindictive damages.
    Myers, for the motion.
    Black, contra.
    
      Gregg in reply cited 21 E. C. L. Rep, 211, 1 Wash. C. C. Rep. 123 ; 5 Halsted 24; 6 Cow. Rep. 185.
   Curia, per

O’Neall, J.

In this case, there is no doubt that the plaintiff’s contract entitled him to damages for its breach, unless it was, as alleged by the defendant, obtained by fraud. This allegation was based altogether upon the facts. For a fraud may as well be perpetrated by a plaintiff in obtaining a contract of purchase, as by a defendant in one of sale. It is true it does not so often occur in the first form as in the latter. But in articles of commerce, where the price is fluctuating and uncertain, and depending more upon the rise and fall consequent upon prosperous or adverse trade, or upon speculation, it may be that the buyer possesses more knowledge than the seller. In such a case, if the latter appeals to the former, for the true state of the market, and tlxe buyer undertakes to give it, and does so falsely, and a sale follows in consequence, at a price greatly below the market price, it would beyond all doubt be fraudulent. Such, it was argued, the proof established this transad ion to be, and after the verdict of the jury, we are to look to the testimony, to see if it will bear that construction. If it will, the verdict must stand.

The defendant was not engaged in rearing the multicaulis; he had recently become possessed, in consequence of the death of his father-in-law; he told the plaintiff “he knew nothing about the price of the trees, and would depend on him,” the plaintiff replied, “he was giving or would give the full value at the north, they were then a drug.” The price at the north, in the.spring was 25-100 per tree, and in the autumn from 50-100 to 75-100. This we must take the plaintiff knew, for he had just returned from the north. His purchase was at 18-100 per .tree. It was made the last of September, and hence, according to the proof, the jury might have concluded that the trees were, at the contract, worth twice as much as the plaintiff induced the defendant to believe they were.

The admission of the plaintiff, that he told the defendant the trees were worth at the north from 13 to 15 cents, and that he did not know he was bound to tell him the precise pi'ice, is another strong cii'cumstance, which, after the verdict of the jury, wre are bound to regard as indicative of fraud. For taken with the rest of the case it makes out this, that although he knew the plaintiff relied on him for the state of the northern market, and he the defendant, had undertaken to give it, yet he stated it falsely. This is a fraudulent misrepresentation by which he obtained an advantage. His contract cannot therefore stand. When the Verdict can be thus sustained by the facts in evidence, it is in vain to ask for a new trial; arid more especially when the case, let it go which way it might, would be a hard one on the losing party. The motion is dismissed.

Richardson, Evans, Butler and Wardlaw, JJ. concurred.  