
    Hough vs. Evans.
    The concealment of a circumstance, which materially impairs the value of an article sold, is fraudulent, and though the vendor at the time of sale refused to warrant the soundness, yet the vendee may recover in an action of deceit.
    Defendant sold plaintiff a slave, and gave him a bill of sale warranting only the title, and at the time of giving him the bill of sale, he absolutely refused to warrant the soundness of the slave. It was proved that the negro was unsound at the time of sale. He had a eronic consumption attended with a bad cough. At the sale, which was at vendue, where defendant sold all his slaves, the defendant said to one witness that the negro was sound, that he had only a cough, as all his other negroes had. It was declared at the sale that the defendant would not warrant any of the negroes or that any of them would live another day. Plaintiff was heard to say after the sale that he had bought a dead or sick negro, but that he could cure him with bacon. The price paid was $482, the value if sound. This was an action of deceit.
    Waties, J. who heard the cause, charged the jury, that if the defendant, by representing an apparent unsoundness to be trifling, knowing it to be otherwise, had thereby induced the plaintiff to give a sound price for the property, that it was fraudulent, and though he had declared that he would not warrant, yet it ought not to avail him.
    The jury found a verdict for the plaintiff.
    The defendant appealed.
    
      Wardlaw for the motion,
    cited Peake’s N.P. 115. lEsp. Dig. 40. Bernard vs. Yates, 1 Nott and M'Cord 142. Rogers vs. Beaty, 2 Nott and M‘Cord 531.
    
      Butler in reply,
    cited Slyke vs. Greenway and Gorree. Wells vs. Fowler. 1 Black. R. 465. 2 P. Wm. 170. Douglass 260. 1 Term R. 12. Bliss vs. Thompson, 4 Mass. R. 488. Hodgson vs. Richardson, 1 Black Rep. 465. Fitzherbert vs. Martin, 1 Term. R. 12.
   Curia, per

Johnson, J.

In the consideration of this case it will be assumed as conclusions necessarily resulting from the finding of the jury, and warranted by the. evidence, that the price paid for the negro James, was his full value if he had been sound. That the defendant expressly refused to warrant his soundness, that he was at the time labouring under a confirmed consumption which was known to the defendant, but which he did not communicate to the plaintiff, and which was unknown to him and not readily detected, and that James died shortly after of that disease; and the question is whether under these circumstances the plaintiff was entitled to recover? Or to put the mere abstract proposition, whether the seller' is not bound to disclose to the purchaser any latent defect/ in the article sold if it is known to him?

The principle on which those proceed who maintain the affirmative of this proposition is that fraud vitiates all contracts, and they contend that the concealment of a circumstance, which materially impares the value of the thing sold, furnishes as conclusive evidence of the fraud as a direct and positive affirmation of that which is not true, and that in morals he who suppresses the truth is equally criminal as he who states a falsehood, and such I think is clearly the well settled rule on the subject.

In Hodgson vs. Richardson, 1 Black. Rep. 465, Mr. Justice Yates lays it down broadly, “ that the concealment of material circumstances vitiates all contracts upon the principle of natural law,” and adds “ that a man kept ignorant of any material ingredient may safely say it is not my contract.”

So in the ease of Mellish et. al. vs. Motteaux et. al. Peake’s Case N. P.115, (cited 2 Comyn. on Cont. 273,) which was an action to recover back the price paid for a brig, which the plaintiffs had purchased with all faults, and it was afterwards discovered that some of her timbers were broken, which materially impaired her value and which was known to the defendants but not disclosed and which could not have been readily discovered by the plaintiffs. Lord Kenyon remarks that in all contracts of this kind it is of the highest importance that courts of law should compel the observance of honesty and good faith, and that the terms to which the plaintiffs acceded, of taking the ship with all faults and without warranty must be understood to relate to those faults only which the plaintiffs could have discovered, or which the defendants were unacquainted with. The same doctrine is also. held by Lord Mansfield, in Fitzherbert vs. Mather, 1 D. and E. 12. But it is no where better expressed than by Chief Justice Parsons in Bliss et. al. vs. Thompson, 4 Mass. Rep. 488, which was a fraudulent concealment in a contract relating to lands in which that able judge remarks, that “ not only good morals but the common law requires that every man in his contracts should observe good faith and act with common honesty; and money obtained by fraudulent concealment or false representations the law will compel to be paid to the party to whom in equity and in good conscience it belongs.

The doctrine of the civil law in relation to implied warrantees has by successive adjudications been adopted and incorporated as part of the common law of this state, and is regarded in the same light that an express warranty would be by the common law as now received and understood in England. But it is not contended that the case under consideration falls within the rules growing out of either of those systems, nor that a seller may not by an explicit refusal to warrant exempt himself from liability if he acts with good faith, as in the case of Slyke vs. Greenway and Goree, decided in- this court. And the question in this case is not whether the defendant is liable | on a warranty either expressed or implied, but whether > he has committed a fraud in the sale, and if he has, wheth!er it be referred to principle or authority he is clearly liable.

But it may be asked shall a man not be permitted to protect himself from liability by express and positive stipulations, and is not the other bound by his assent to those terms?

In England every sale without warranty contains in effect a stipulation on the part of the seller not to warrant, and of the purchaser to accept without warranty; and we have before seen that the doctrine contended for applies i o those cases; and a summary answer may be found in the principle that fraud vitiates all contracts, may also be safely laid down as an axiom that fraud cannot be purged by any stipulation; for put it on the best possible footing, it is only a fraudulent stipulation to cover a fraud.

In addition to these general remarks it may be observed that there is one circumstance in this case that strengthens the claim of the plaintiff. The general appearance of the negro James did not indicate to the eye of a common observer the presence of the disease, and on enquiry made by one of the witnesses, defendant represented to him that he was sound and although he had a cough it was of a common kind and that all his other negroes were in the same situation. Now, although it did not appear i that this came to the knowledge of the plaintiff and ought J not therefore to be set down as a fraudulent misrepresent tation to him, yet when it is recollected that the negro was sold at public vendue, we may, I think, be permitted to collect from it a disposition on his part to commit a fraud on whomsoever might be the purchaser, and which he too successfully practised on the plaintiff.

The majority of the court concur with the presiding judge in all the views taken by him of the case, and the motion is refused.

Nott, J.

dissenting. I concur with the presiding judge in the principles of law laid down by him. But I do not consider them as applicable to this case. The defendant made a sale of the principal part of his property at public auction, the terms of which were that he would warrant the title but nothing else. The terms were proclaimed by the crier from the stand, and were repeated by the vendor to every person who consulted him on the subject. There was no pretence that it was amere factitious sale, in order to put off his unsound property. That is an inference attempted to be drawn from the fact that there was one unsound negro in the gang. But this was an action of deceit in which fraud was not to be presumed, but should have been proved. It is said the defendant was bound to disclose the defects of the property. But I am not aware of any rule of law which requires the vendor unasked, to disclose the defects of property offered for sale when he expressly declares that be warrants nothing but the title. It is to be sure in' proof, that he told one individual that.the negro was sound, except that.-he had a cough, as all his negroes had. Now let us admit that he was guilty of a misrepresentation to that person — -it would give no cause of action to the plaintiff, because he was no party to the false affirmation. But there is no proof that i the defendant knew it to be false. The witness, and I {believe only one, said that the negro had a cough sometime previous to the sale, and spit blood. But that is no conclusive evidence of a fatal malady — and there is no evidence that the defendant even knew the fact, and much less that he knew or supposed that it would eventually turn out to be a mortal disease. But to place the case on the most favorable grounds for the plaintiff, it will amount to nothing more than expressing an opinion that the negro was sound, but still declining to warrant him to be so.

I am of opinion therefore, that the plaintiff purchased at his own risk, and if he has made a had bargain, he must charge, it to his own imprudent conduct, and not to the defendant.

New Trial refused 
      
      
         See Mr. Verplank’s Essay on Contracts.
     