
    Edmund H. Holmes vs. John Caldwell.
    C. in order to induce H. to do the draying business of a firm of which 0. was a member, assured him that he should,have all tho business of the firm, and that he would have as much as he could do for a year or two. H., thus assured, undertook the business, and incurred considerable expense in purchasing slaves, horses, drays, &e„ In about five months the firm was dissolved and a new one formed, of which 0. was not a member. The new firm gave their business to another: Whereupon H. brought an action on the case against 0. for the loss he had sustained by reason of the false representation as to the time he was to have the business. Non-suit ordered, there being nothing in the evidence showing that O’s. declarations were not made in entire good faith.
    BEFORE O’NEALL, J., AT CHARLESTON, SPRING TERM, 1856.
    The report of Ms Honor, the presiding Judge is as follows:
    “This was stated to me as an action on the case. The declaration was read, and as I gathered its statements, it seemed that the plaintiff alleged that the defendant was a member of the firm of E. & J. Caldwell & Co.; that the plaintiff was a clerk in the same house, sampling cotton, &o., which profitable employment he gaye up to embark in draying, under the ciroumstances following: Eelix Meetze had the contract of draying for the house for many years previous; his health failed and he was desirous of giving up the business; that under the expectation held out by the defendant that he should have the draying for the firm, he, the plaintiff, bought out Meetze’s stock, the defendant assuring him that the firm would continue for at least two years longer. That in fulfilment of his contract with Meetze the plaintiff gave to E. & J. Caldwell his note for five hundred dollars, the balance of Meetze’s debt to the firm. The plaintiff assumed tbe draying in April, 1852, and continued it till October of tbe same year, when tbe firm, having been dissolved, it (tbe draying) was given to another.
    “ This is a sort of synopsis of tbe case, as stated in tbe record. Tbe declaration, however, should be printed with tbe report.
    
      “ Felix Meetze proved: That be lived in Columbia before be removed to Charleston; that John Caldwell also lived there; R, Caldwell lived in Charleston. In 1843 or 1844 be (F. M.) commenced buying cotton and shipping it to Charleston; be failed in 1845. He owed R. & J. Caldwell five thousand two hundred dollars. He said be came to Charleston to pay tbe debt by draying cotton at twelve and a half cents per bale for tbe firm. He did tbe draying for seven or eight years; an average of thirty thousand bales per year. He appropriated a large portion to tbe payment of bis debt to them. His debt to them stood on bond three thousand dollars, secured by several of bis friends; tbe balance, two thousand two hundred dollars rested on himself alone. This debt, in both parts, was closed in 1852 — August. He, the witness, sold out to the plaintiff, to enable him to arrange with the defendant, whose health was bad, and who wished the debt settled.
    “ He, Meetze, told Caldwell the defendant, that he was in debt to Holmes the plaintiff, as well as himself; that he could make a better sale to the plaintiff if, he could have his contract for draying than he could to any body else. The defendant said any one who would buy should have the business. He, Meetze, said he perhaps might have finished the payment of his debt to R. & J. 0. in about two years. He Meetze, Caldwell the defendant, and Holmes the plaintiff, met at the Charleston Hotel in the defendant’s room. He, Meetze, told the defendant that he and Holmes the plaintiff had agreed for four slaves, ten drays, nine horses, and licenses, provided he, the defendant, would give the plaintiff the busi•ness. He, defendant, said be was perfectly satisfied. He, ■Meetze, said to Caldwell, tbe plaintiff was afraid Wells might encroach on his business. The defendant replied, as to the business of Wells and Anderson and another, he would not have anything to do with it, but as to the balance of the business consigned to E. & J. Caldwell here (Charleston) and in New Yorlc, the plaintiff should have it: that he would have as much as he could do for a year or two. He, Meetze, asked the plaintiff if he was satisfied, or wished some writing. The defendant replied, I hope, gentlemen, we all understand one another. The witness, Meetze, said, the plaintiff would not have bought without this arrangement. He, the witness, owed the plaintiff four thousand two hundred dollars: they had been draying together: he gave his note for the balance, eight hundred dollars. He sold a farm afterwards to satisfy the defendant, subject to a lien in favor of Cordes: he paid two thousand five hundred dollars cash to the defendant; for the balance four hundred and eighty-nine dollars, they (E. & J. Caldwell) agreed to take the plaintiff. The plaintiff accordingly gave his note: he was to worh it out. Holmes, he said, built a long stable and a hay house. . The plaintiff did the business till October, 1852. He, the witness, resumed draying in the fall. He said Wells came with the orders for cotton of E. Caldwell & Co. The defendant, he said, said nothing about the partnership being dissolved. The defendant said the house in Charleston would not do as heavy business as it had done; but he thought the house in New York would do a heavy business. He, Meetze, said, the plaintiff was to have the business of both.
    “ This witness, on his cross-examination, stated that he had taken the benefit of the prison bounds and bankrupt laws. He bought the negroes, which he had in the draying business, and gave E. CaldweE a mortgage for their price, another balance of his debt, which was not secured by bond for three thousand dollars — executed before he began to buy cotton. His sureties gave renewals on condition of bis coining to Charleston. Tbe plaintiff) be said, bad been bis partner for two years: be was also' a sampler of cotton, be said, in tbe bonse of E. & J. Caldwell. He said be drayed for Dulin from 1852 till 1854; be said be bad no sucb interest in it as be could sell. He said tbe defendant did not request bim to get any one to do bis business. He did not settle witb tbe defendant for several months after be sold to tbe plaintiff; i. e. be sold in April, and paid tbe defendant, or E. & J. Caldwell, in August. He got six hundred dollars for bis property from tbe plaintiff more than be could from any one else. He said be sold bis farm for five thousand dollars; bis property was sufficient to pay bis debts. He did not represent that be was insolvent. Scott, one of his sureties was good for one thousand dollars. E. Caldwell gave up Scott’s bond, and charged it to tbe witness before be sold. The defendant wished tbe debt paid: tbe witness said be, tbe defendant, might have discharged bim from draying; but if so be, tbe witness, would not have felt himself bound to pay tbe debt. He would not of himself have abandoned tbe draying contract without paying tbe debt. He said be thought tbe defendant would have refused to sign tbe written contract which be, tbe witness, suggested, wdien Caldwell replied, “ I hope, gentlemen, we all understand one another.” He said be thought one thousand five hundred dollars or two thousand dollars could have been made per annum on tbe draying contract.
    “Charles Wm. Simons proved that be lived in Charleston. He knew tbe plaintiff in 1852, which was a very sickly season: business was dull. He said be knew tbe plaintiff got Meetze’s stock. In October, 1852, Wells, be said, did tbe business (draying) for E. Caldwell & Co. Tbe plaintiff was much chagrined at the business being taken from bim. He might have cleared two thousand dollars per year.
    “ Tbe plaintiff here closed, and tbe defendant moved for a non-suit, on tbe grounds that no fraud was either alleged or proved; and tbat assumpsit would not lie on tbe facts proved.
    “I sustained tbe motion.”
    Tbe plaintiff appealed, and now moved tbis Court to set aside tbe non-suit, on tbe grounds:
    1. Because tbe defendant misrepresented tbe period for wbicb tbe firm of R. &. J. Caldwell was to last; and in tbe position of tbe parties, tbis was a fraud.
    2. Because tbe defendant promised tbe plaintiff tbat tbe balance of tbe purchase money of Meetze’s negroes, stock, etc., for wbicb tbe note was given, should be worked out -by tbe draying contract, and tbe dismissal of tbe plaintiff within three months, was a fraud upon him.
    3. Because tbe whole conduct of tbe defendant was calculated to deceive and injure, and did, in fact, deceive and injure tbe plaintiff, and tbis was, therefore, fraud in law, whatever may have been 'the motives.
    4. Because all tbe circumstances taken together, as Meetze details them, shewed an intention on tbe part of defendant to deceive plaintiff into tbe expectation of a long continuance of tbe draying contract for bis own advantage, and such conduct was fraudulent and injurious.
    5. Because tbe plaintiff proved fraud in tbe defendant, and injury to himself, and be was therefore entitled to maintain tbis action.
    6. Because upon tbe proof, tbe Court should have referred to tbe jury, whether tbe defendant’s conduct was fraudulent.
    
      ■ 7, Because tbe non-suit was, in other respects, contrary to law and evidence.
    
      Martin, for appellant.
    
      Petigru, contra.
   Tbe opinion of tbe Court was delivered by

O’Neall, J.

In tbis case, as- now presented, -and as it is now admitted to be, an action of deceit, witb every proper allegation made in tbe declaration, (wbicb bas been unfortunately lost) tbe only question is whether a fraud bas been proved. ■

I suppose tbe plaintiff is now to be considered as averring that to aid Meetze, in bis sale to tbe plaintiff" and to induce ■ him to make tbe purchase, tbe defendant, a partner in tbe bouse of E. & J. Caldwell, represented to him,-that tbe business of that bouse here, and in New York, would be as much as be could do, in draying for a year or two, that be should have their draying, and that tbe firm would continue that long, and that be knew that tbis was false: that tbe plaintiff, confiding in such representation, made the' purchase, and that tbe firm was dissolved in a few months, whereby be lost tbe draying, and sustained damage.

Everything is conceded to tbe plaintiff except tbe fact of fraud. There is no proof whatever, that Caldwell knew or contemplated tbe dissolution of tbe firm. Tbe plaintiff bad tbe dfayage of tbe bouse of E. & J. Caldwell, to tbe dissolution of - tbe firm, when tbe defendant ceased -to be a member, and a new firm witb other members entered upon the- business, for be could not and did not control their draying. Tbe plaintiff lost it, and thereby sustained damage, butjhat cannot be charged to tbe defendant.

In tbis case there is no such “ false affirmation” made by tbe defendant with “ intent to defraud the plaintiff)” as was found in Pasley vs. Freeman, 3 T. R. 51. Unless that could be found, there is no ground on which the plaintiff can stand. So far as the proof goes, the defendant made no assertion, which was not true, the plaintiff was to have and did get the business of R. & J. Caldwell. This the defendant gave- as his opinion would be as much as he (the plaintiff) could do for a year or two. There is no objection to the quantity of the business, but it did not last long enough. Unless the defendant had known that the firm was to be dissolved in less time than a year or two, there can be no pretence of his liability, by making a false affirmation. There is not the slightest proof of such knowledge. There was nothing therefore in the case to go to the jury. ’ ' ■

The motion is dismissed.

Wardlaw, Withers, WhitNer and Mottro, JJ., concurred.

Motion dismissed.  