
    FAYETTE COUNTY,
    December Term, 1798.
    John Work v. Robert Grier.
    CASE, on a contract, made 11th February, 1797, of sale of a plantation and mill, for falsely, fraudulently, and deceitfully affirming, that the mill-dam was found, sufficient, and founded on a rock ; trusting to which the plaintiff purchased the plantation and millfor 1500l. whereas the mill-dam was then unfound, insufficient, not founded on a rock, and great part of it without foundation.
    
      Of the price 600l. Was paid at the time of the contract, and bonds given for the rest, in yearly payments, There was no article of the sale. But on the bond last due, payable in the year 1800, the following writing was indorsed, signed and sealed by the parties.
    “ P. S.—This obligation is subject to the following stipulation, viz. that, if the mill-dam, for the payment of which this bond is a part, should happen to break, by reason of a bad foundation only, a deduction of the sum of one hundred pounds is agreed upon in lieu thereof, in favour of said Work. It is also agreed, that the said Work is to use all lawful endeavours and costs, in order to prevent any breach about said dam, by keeping it sufficiently dirtied, and free from such symptoms as might occasion the same.”
    A witness was called to prove the representation, at the time of the contract.
    
      Campbell and Pentecost, for the defendant,
    objected to parole testimony, as the parties had reduced the agreement to writing, agreed on the risk, and fixed the amount of damages, to be deducted out of the last bond, if, before it became due, the dam should break. He can get no other damages, but the sum so stipulated for.
    1 Fonbl.141-4.
    1 Fonbl. 106. Kaim's Prin. Eq. 86, 259.
    
    
      Youngs Lyon, and Galbraith, for the plaintiff.
    The objection is made on a petitio principii. This indorsement is not a note of the contract. It is a sort of postscript to a bond for the payment of the price, providing for a compensation for a certain contingency, not relating to the essential part of the contract, that the dam was founded on a rock. In cases like this, as on policies of insurance, parole evidence of want of good faith is constantly admitted, as evidence of facts, within the knowledge of the insured, increasing the risk.
    Contracts will not be inforced, where there is ignorance or error, in fact or in law ; and will be set aside for fraud. There could be no relief against fraud, unless parole evidence of it were admitted.
    President. If this writing had been a statement of the contract, there would have been strong reasons for rejecting parole testimony of the representation ; as, when parties reduce their conversations to writing, that alone ought to be considered as the deliberate and con clusive agreement. This writing does not clearly seem to be a statement of the contract. The action is for a fraud in misrepresenting a thing within the knowledge of the seller, and not of the buyer ; in representing the dam as founded on a rock, when it was not. The foundation might not be bad, though not founded on a rock. The writing is to secure a certain compensation, on the contingency of the dam breaking within three years, by reason of a bad foundation only. The dam might not break within that time, though not founded on a rock ; and yet might be much less valuable to the buyer, than if founded on a rock.
    Parole evidence of a contract may be inadmissible, when a contract is reduced to writing ; and yet parole evidence of fraud may be given, of what cannot appear in the writing, viz. the variance of the thing sold from the representation made of it in the contract.
    The principal difficulty in this case is, to know whether the writing means the same thing by a bad foundation, that the declaration means by not being founded on a rock ; and whether providing compensation for the dam breaking, by reason of a bad foundation, is not waving all other objections to the dam.
    Upon the whole, we think it best, to admit the testimony, and reserve the point.
    It was then proved, that, at the time of the sale, Work had suspicions, that the dam was infufficient, and objected to it, for want of an apron ; that Grier said, it was as good a dam as any on the creek, that there was no occasion for an apron, for it was founded on a rock, and that was better than an apron. It had been founded on a rock ; but the fall of the water over the dam had broken through the rock, for a considerable distance in the middle of the creek, and occasioned a cavity, through which a considerable part of the stones in the dam had fallen and been waited away, so that part of the dam was hollow. It had not however given way, and it was uncertain whether it would, merely on that account. That would depend on casualties, as ice lodging on the breast, &c. This state of the dam was not generally known, till in the summer after the sale ; but there was some reason to believe, that it was in this state, at the time of the sale, and probably that Grier knew it. The dam continued to serve its purpose, and the mill went, when other mills on that creek went.
    Young, for the plaintiff.
    An action lies for cheating by false dice, and for selling one commodity instead another. Fraud or concealment of any material circumstance will be relieved against, notwithstanding a warranty.
    
      3Com. 166. 1 Bro. Chan. 440. 1 Fonbl. 134.
    
      1 Fonbl. 109-10.
    2 Powel Contr. 208.
    2 Powel Contr. 203.
    
      Campbell, for the defendant.
    1. Fraud will not be presumed. You have no evidence, that the dam was not, at the time of the sale, as represented. All the evidence is five or six months after. If there was a misrepresentation, every misrepresentation will not justify the rescinding of a solemn contract. To do this, it must be wilful, and known to the party.
    2. Here is a written agreement entered into at the time of the sale, for ascertaining the damages, in case the representation should fail. Work had no confidence in the representation of Grier, and relied on this agreement for fixed damages to be obtained at a certain future time.
    
      Young. We differ not as to principles of law ; but as to the weight of evidence. The cases read apply not to this. We are not suing for a penalty, nor for rescinding the contract, and recovering back the money paid, but for damages for a misrepresentation which has made Work pay a greater price, than he would have paid, if the dam had been truly described.
   President.

If there be a wilful misrepresentation, or concealment of any material circumstance, this is a fraud, and damages must be given, proportioned to the consequences of the buyer’s confidence in the assertion of the seller.

If, though there be no wilful misrepresentation or concealment, there be an undertaking, at the time of the sale, that the property sold is such, as, in a material circumstance, it turns out not to be, damages must be given.

But we would impress it strongly on you, that a presumption of great force arises from the writing, that Work took on himself all risks, except that of the dam breaking in three years, by reason of a bad foundation ; and, for that risk, has measured his damages, and settled the mode of compensation.

Note.—This case had been tried at the preceding term, and a verdict found for the plaintiff : but the jury said, they could not ascertain the damages. At the subsequent term, there was a motion for a new trial, which, without any interference of the court, was ended by a compromise.

The jury found a verdict for the plaintiff for 312l. 10s.  