
    William B. Campbell vs. George Kinlock.
    M. being about to offer a negro, Joe, for sale, Gr. K., as her agent, certified in writing that Joe was an excellent bread and cake baker, that he was sold to change the investment, and that his lowest price was $800. Plaintiff became the purchaser. Joe was unsound at the time within the knowledge of GL K., and died shortly afterwards. In an action on the case against Gr. K., for falsely representing Joe to be sound, Held, That the omission to state in the certificate that Joe was sound, was not equivalent to a suggestion of his soundness, and ' before plaintiff could recover it must be made plainly to appear that the circumstances rendered it obligatory on Gr. K. to disclose all the faults of Joe known to him at the time.
    IN THE CITY COURT OP CHARLESTON, PEBEUARY TEEM, 1855.
    The report of his Honor, the Recorder,,is as follows:
    
      “ This was an action on the case, the nature and character of which will best appear from the- declaration; the first count, in which is subjoined, ‘For that whereas the said defendant, on the fifteenth day of March, in the year of our Lord one thousand eight hundred and fifty-one, at the city of Charleston, in the State aforesaid, and within the jurisdiction of this Court, intending to deceive and defraud the said plaintiff, did wrongfully and deceitfully advise and persuade the plaintiff to purchase and buy from one Anna Miller, one negro man slave named or called Joe, for the sum of seven hundred and seventy-five dollars, and then and there for that purpose did falsely affirm and represent to the said plaintiff that the said slave called Joe was then and there sound, healthy, and free from all diseases ; and did thereby deceitfully induce and persuade the said plaintiff to become the purchaser of the said slave for the price aforesaid. And the said plaintiff avers that, confiding in the said affirmation and representation of the said defendant, and believing the same to be true, and not knowing to the contrary thereof, he did afterwards, to wit, on the day, in the year, and at the place aforesaid, purchase and buy of and from the said Anna Miller, the said slave called Joe, and paid to the said Anna Miller, for the said slave, the said price or sum of seven hundred and"seventy-five .dollars : Whereas, in fact, the said slave was not, at the time of the said purchase, and at the time of making the said affirmation and representation, by the said defendant, sound and healthy; and he, the said defendant, well knew the same, to wit., at the place, and within the jurisdiction and State aforesaid: but on the contrary thereof, the said slave called Joe was sick and unsound, as he, the said defendant, very well knew, with a fatal disease called and known as consumption of the lungs, by reason of which the said slave became, and was of no use or value to the said plaintiff. And so he, the said defendant, deceived the said plaintiff by his false and deceitful affirmation and representation aforesaid, and thereby he has been imposed upon, and has wholly lost the said slave named or called Joe, and the said price or sum of money so paid by him as aforesaid, to wit., the said sum of seven hundred and seventy-five dollars ; and thereby also the said plaintiff was then and there put to great expense of his monies, amounting in all to a large sum of money, to wit., the sum of dollars, in and about the feeding, nursing, and taking care of the said slave, and for his medical and other necessary attendance, to wit., at the place, and within the jurisdiction and State aforesaid.’
    “ There were several other counts in the declaration, varying somewhat in the statement of the facts alleged, upon which the plaintiff founded his complaint or right of recovery; if necessary the record may be referred to, but they were all essentially in spirit and substance the statement of the same grievance complained of in the first count of the plaintiff’s declaration. The defendant pleaded not guilty. The written and oral proofs introduced in the cause were substantially as follows: Among'the most essential and important proofs introduced by the plaintiff in the cause, and upon which he relied, was the following written statement or certificate, signed by the defendant, and reference to which will be found to be subsequently made in the testimony of the witnesses. The following is a copy :
    
      “ ‘Joe is an excellent bread and cake baker; he has been brought up to the business from a boy; he has not been out of the 'Miller family. Mrs. Miller is now out of the business, and sells him to change the investment. Lowest cash price, $800.
    (Signed,) Geo. Kinlock,
    Agent for Mrs. Miller.’
    “ The following testimony was subsequently introduced:
    PLAINTIFF’S PROOFS.
    
      “Mr. Qhafee, sworn. — Knows bill of sale dated March 15th, 1851, signed Anna Miller, and attested by the defendant as a witness. Slave was named Joe, warranted sound. Witness knew Mrs. Miller; was a connection of defendant; defendant married Mrs. Miller’s sister; she lived with defendant; Mrs. Miller had owned Joe for eight or ten years. He belonged to Mr. Miller in his lifetime; was a baker by trade. Mrs. Miller had three or four negroes; they died before Mrs. • Miller; Mrs. Miller died about three years ago; left no negroes that witness knows of. Joe was addicted to drinking. Mrs. Miller had, sometime before her death, hired Joe to the Josephs, who had the exclusive care of him. Joe was for a short time in the employ of defendant; it was known to all the family that Joe was a drunkard. Witness never heard that Joe had a hemorrhage at any time. Mrs. Miller hired Joe to the" Josephs because she could not manage him.
    
      “ Cross-examined. — Witness married defendant’s daughter; was intimate in the family; was there frequently; often advised the sale of Joe; put him in Ryan’s hands. Witness regarded the boy as sound, except his lad habit of drinking, which might have occasioned his death at any time. Defendant is a resident of the city.
    “'Here the testimony of Dr. S. H. Deas, taken by commission, was offered in evidence; the substance of his testimony, as taken from my notes, was as follows : He attended Joe on May 2d, 1851; first attacks ; hemorrhage of the lungs ; was unsound at this time; no hope of recovery; disease was of longstanding; unsound and valueless.; charged about twenty or twenty-one dollars.
    “ Gross-examined. — Don’t know that Joe was addicted to drinking ; would not attribute this disease (hemorrhage of the lungs) to drinking.
    “ B. M. Boyhin, a ‘second witness, examined under the same commission, testified in substance as follows: He is a physician — attended Joe (disease was hemorrhage of the lungs); he supposed this was not the first attack; disease was of a-dangerous character; chances against this case; did not regard Joe as sound.
    “ Gross-examined. — The habit of drinking would not necessarily occasion this disease.
    
    “ Witness, Wm. B. Campbell, examined under the same commission. — Was conductor on the Railroad; saw Joe in Camden ; saw first attack in April, 1851, of hemorrhage ; saw another attack afterwards in the same month.
    “ Gross-examined. — Joe was carried back to Charleston; witness is plaintiff’s son ; did not know Joe’s habit as to drink.
    “ Caroline- McKenzie, examined under the same commission, testified as follows. — Knew Joe in 1851; Joe was unsound ; coughed incessantly ; threw up quantities of blood. Joe was carried back to Charleston.
    
      “Mr. Chaffee, recalled. — Proves signature of Mr. Kinlock (defendant) to a paper certifying to the soundness and character of Joe (no date).
    “ Cross-examined. — Josephs had Joe for several years, at twenty dollars a month.
    
      “J. JF. Kennedy, sworn. — Mr. Kyan gave witness the above paper; witness gave this paper to plaintiff; plaintiff came down and bought the negro ; Joe went to Camden with the plaintiff; witness saw Joe when he returned, he looked badly; plaintiff offered him back; defendant refused to receive ; (Mrs. Miller was out of town;) plaintiff said he bought him from defendant.
    
      “ Cross-examined — Thinks plaintiff*knew the boy; plaintiff worked with Mr. Miller some nineteen years ago; brought Joe down on Rail-road.
    
    “ In Refly. — Plaintiff insisted defendant was liable to him as principal.
    “ John M. Ryan, sworn. — Sold Joe to plaintiff; bill of sale filled up by witness; Mr. Chafee put Joe in his hands; wanted witness to sell him, said he belonged to Mrs. Miller; referred witness to Mr. Kinlock. Kennedy wanted a certificate; witness applied to defendant, who gave him the paper. Mr. Hall wrote the paper in defendant’s office, and the defendant signed it; the sale was made on the faith of this paper. In two or three weeks witness received notice from plaintiff of Joe’s hemorrhage. Joe was brought to town; Oakes sold him, witness had declined to sell him. Account of sale June 19th, 1851; net sales $49 79. Joe was bought by Mr., Hogan.
    “ Cross-examined. — Mr. Campbell saw the negro, recognized him as one he had known. Joe was apparently strong, and ' healthy. Witness carried the bill of sale to defendant; defendant agreed to take the reduced price. Defendant got the bill of sale signed by Mrs. Miller; was informed there was a breach of the trestle work on the Rail-road; plaintiff told witness he had been delayed some time, (perhaps a day,) in getting over the swamp. Witness judged from Joe’s appearance that he was sound.
    
      11 In Reply. — Defendant received the money. After the transaction had conversation with defendant, advised that defendant should take him back, if unsound; defendant remarked the money could not be returned, as a portion of it had been spent.
    
      u Gross-examined. — Did not consider defendant as the owner of Joe, while in his hands for sale.
    “ B. Bross, sworn.' — Knew Joe, witness was working with John Miller when Joe was; afterwards with Robert Miller; knew him while at Josephs; knew him from boyhood ; was the property of John Miller, afterwards of Mrs. Miller; knew him to be of bad habits, a confirmed drunkard; was not sound, had a cough; was much swollen, regarded as unsound; in 1850 or 1851, was in the guard house at one time; plaintiff may have worked with John Miller twenty years ago, when Joe was sound; Joe was frequently laid up; thinks his unsoundness was apparent.
    “ Gross-examined. — Joe was a good cake baker; negroes employed in this business are mostly in the bake-house; let them off on Saturday night; knew when plaintiff worked with Robert S. Miller, Joe was then a mere boy; wages of a good cake baker should be about $20 per month.
    ' “ Patrióle Hogan, sworn. — Bought a negro in 1851 from Oakes, was very sickly when he bought him; his name was Joe; gave $60 ; witness sold him afterwards; bought by R. S. Miller; he died afterwards.
    
      
      “JR,. S. Miller, sworn. — Knew Joe; witness bought Joe from Hogan, he died ten days after; worked with witness 'about twenty years ago; over twenty'years since plaintiff worked with Mr. Miller.
    “ Gross-examined. — Has seen Joe in the streets, appeared to be sound ; negroes work day and night at this business. John C. Miller died about, twenty or twenty-one years ago; Mrs. Miller bought Joe in out of the estate. In 1851 negroes were high; Joe, if sound, would have been worth $1500. J. C. Miller died in 1837, Joe sold about a year afterwards. Joe was loorth, nothing when witness bought him from Hogan; bought him from sympathy; he died shortly afterwards.
    “ Mr. Ohafee, recalled. — Tax return of Mrs. Miller, 13th Eeb. 1850, signed Geo. Kinloek, agent; Joe is named in the return; witness purchased Maria from Mrs. Miller; Mrs. Miller applied the purchase money to pay a debt. George was conveyed to a daughter of Mrs. Miller; Mrs. Miller had but one child.
    “ Gross-examined. — Told Ryan he could recommend Joe as a first-rate cake baker; knows Miss Miller had some $1000 or $800 left her by a Mrs. Russell; Mrs. Miller was indebted to a Mr. Gates to a large amount. Witness would not have warranted Joe — unsound.. Once bought a negro, warranted sound, who was a drunkard. Would have united in the paper signed by defendant; they are precisely the instructions given by witness to Ryan. Witness had no doubt that defendant must have known the habits and character of Joe. ■-
    “ Here the testimony closed.
    “Among the grounds of appeal, hereto annexed, is one complaining that the Court refused to grant the defendant’s motion for a nonsuit. It is apparent that, at all events, the Court could not have done otherwise; as at least, upon the allegations in the declaration, and the proofs submitted, there was enough to go to the jury, if not to warrant a verdict for the plaintiff. It is true, that the plaintiff’s counsel, in his argument to the jury, (as it appeared to me,) forbore to press upon their consideration the, entire force of the allegations .against the defendant; it was clear to my mind that in that aspect of the case, it resolved itself into a mere question of fact, as to the fraudulent intention of the party, which it was the province of the jury to decide; he alluded to the well-known probity of the defendant, and disclaimed any intention of a pre-conceived or premeditated fraud. Thence, he argued that, as it. appeared by the evidence, the plaintiff had purchased the negro Joe upon the faith of the written representation of the defendant, professedly acting as, and signing himself as the agent of Mrs. Miller, which representation turned out to be untrue, the defendant was nevertheless liable as for a false misrepresentation, in a matter in which he was indirectly concerned, although he may not have intended an intentional fraud. I was very much disposed to regard the transaction in this point of view: and, as suggested in the grounds of appeal, may have instructed the jury, that even in this aspect of the case, upon the proof before them, they would be authorized to find a verdict for the plaintiff. The jury may have taken this view of the matter, and I presume it is most likely they did so, in finding their verdict. At the same time, the responsibility of the defendant, upon the allegations contained in the record, and the proofs before them, were not formally or legally withdrawn from their consideration.
    
      “ The question of the soundness or unsoundness of Joe, spoken of in the first ground of appeal for a new trial, was distinctly and entirely, without the least prejudice in any opinion on the part of the Court, submitted to the jury. As to the third ground, I did regard the defendant, acting professedly as the agent of Mrs. Miller, and signing the written representation of Joe’s character as such agent, as equally bound to disclose all facts within his knowledge, touching the soundness of Joe, as though he had been the actual vendor himself.”
    The defendant appealed, and now moved this Court for a nonsuit.
    Because, it is respectfully submitted, that his Honor erred in refusing the nonsuit, there being no proof of a fraudulent iptent to deceive or injure the plaintiff, but the defendant was .admitted by the plaintiff and his counsel to have acted without any intention to deceive.
    And failing in that motion, then for a new trial:
    1. Because his Honor charged the jury, that there was no doubt of the unsoundness; and, it is respectfully submitted, his Honor should have referred this question to the jury.
    2. Because his Honor erred in charging the jury, that it was sufficient, if the representation was false, and it was not necessary for the representation to be fraudulently made.
    3. Because his Honor erred in charging the jury, that if the defendant knew of the habits of the negro, and omitted to disclose them, he was as much liable as vendor would be to the vendee, in an action brought against vendor to recover for unsoundness.
    4. Because his Honor charged the jury, that if the plaintiff was misled by the representation of the defendant, without any intent to deceive, and (such intention was admitted by plaintiff to be wanting,) the defendant, in this form of action, was liable as the vendor.
    5.Because his Honor charged the jury, that the representation of the defendant as to Joe’s capacity in his employment, and the omission to state his knowledge of his habits, made him equally responsible as the vendor.
    6. Because his Honor charged the jury, that if the plaintiff was misled by the certificate of the defendant, without any preconceived intention on the part of the defendant to deceive, the plaintiff was entitled to a verdict.
    7. Because his Honor charged the jury, that although the defendant at all times acted as agent, and was at all times so known to the plaintiff, yet he was liable to the defendant as principal.
    8. Because his Honor erred in charging the jury that knowing the habits of the negro, the omission to put the same in the certificate, without any fraudulent intent, made him responsible to the plaintiff.
    9. Because the charge of his. Honor was in' other respects contrary to law, and the verdict contrary to law and evidence.
    llowry, Petigru, for appellant.
    Campbell, contra.
   The opinion of the Court was delivered by

Wardlaw, J.

The substance of the declaration is, that the defendant made an affirmation and representation concerning Joe’s soundness, which was false and then known by him to be false, whereby the plaintiff was deceived, and in consequence has sustained damage.

The writing which is copied in the report, and which was signed “Geo. Kinlock, agent for Mrs. Miller,” is the only evideuce of any representation made by the defendant. This the Recorder calls “ a paper certifying to the soundness and character of Joe.” But soundness is not alluded to in it, nor is character, if that word is understood to embrace moral qualities or any thing besides qualification as a baker. Every word contained in it appears to be true, unless some exception may be involved in the phrase “to change the investment.” Yet still, apart from the question of fraudulent intention, instructions have been given to the jury, under which this writing might have sustained the action, upon proof that the plaintiff was actually misled by it and in consequence sustained loss, although the defendant may not have intended a fraud.

The argument in support of the instructions seems to be this. The concurrence of wrong and damage gives a right of action; the affirmation of a known falsehood is a wrong: the suppression of truth is equivalent to the suggestion of falsehood : such purpose is not essential to the constitution of wrong in that which is wrong in itself: and therefore the fraudulent intention of the defendant was not necessary to the completion of the plaintiff’s case.

Of these propositions there is manifest error in that one which makes the suppression of truth always equivalent to the suggestion of falsehood. Falsehood' suggested by which a plaintiff is misled and hurt, gives no action unless it be accompanied by moral wrong: (Bailey vs. Walford, 9 Ad. & El., N. S. 197; Ormrod vs. Huth, 14 M. & W. 651; Haydroft vs. Cready, 2 East. 92.) It is always so accompanied, when it is known at the time by him who utters it to be false. (Russell vs. Clark, 7 Cranch, 69; Lofdell vs. Baker, 1 Met. 194; 3 Idem, 469; Foster vs. Charles, 6 Bing. 396; 7 idem, 108; 8 Bing. 433; See 1 Smith’s Lead. Cases, 79; 2 Ib. 71.) But omission to state a known truth is not usually wilful concealment, and even when it is, is often both prudent and praiseworthy. To make the suppression of truth wrong, it must be not only wilful but immoral. It is only when duty requires the utterance of truth that its suppression is a moral wrong. If the rights of the inquirer, the relations of the speaker to the subject and parties concerned, time, place, and other circumstances impose the duty of speaking, silence is wrong: and if such silence is calculated to deceive and does deceive, it may, without any purpose of selfish gain or malicious mischief, sustain an action for the loss it occasions. In such case it is fraudulent, because it is dishonest and deceives. It is a lie indirect, the same in guilt and in consequences as a lie direct. It is an evil not justified even when done that good may come from it.

In the case before us the Recorder, upholding the obligation of a seller to disclose all known faults, has applied the obligation in full force to the defendant, as agent of the seller; and even with the concession that the defendant’s intention was not fraudulent, has considered his omission of a known fact as a written representation that the fact did not exist, and for this has held him responsible just as the seller would have been for a false affirmation. This enforcement of a high morality required plain evidence that at the time when the defendant signed the writing, circumstances made it obligatory upon him to disclose all the faults of Joe known to him, and must have informed him that what he omitted to state would be taken not to exist. The evidence of what occurred at the signing of the writing shows nothing but the presentment at the instance of another agent, to the defendant, of a paper which he signed. What was then told to him, or asked of him ? What was the nature of his agency ? What was the purpose of the paper ? Could it be fairly interpr'eted into a full statement of all that he knew about Joe? Was it calculated to impose upon an ordinarily prudent man in respect to Joe’s physical condition ? Were further inquiries by a purchaser then contemplated? Were they actually made ? Was the omission in the writing of the matter complained of not merely incautious, but intentionably wrong, equivalent to his affirmation of a known falsehood ? These questions must be answered against the defendant by the evidence, before he can be held answerable for the plaintiff’s loss.

Other questions are involved in the case, which have been suggested in the argument, but which this Court does not pass upon, especially some concerning warranty or such abatement of price as excluded the implication of warranty, and concerning the legal irresponsibility or the insolvency of Mrs. Miller as one of the causes of the plaintiff’s loss. The case is now sent back, because' of the instructions concerning intention, which were given by the Recorder upon the view which he thinks it most likely the jury took, and because of the deficiency and seeming misconceptions of the evidence applicable to that view.

Motion for new trial granted.

O’Neall, and Whitner, JJ., concurred.

Motion granted.  