2 Ga. 66 | Ga. | 1847
By the Court
delivering the opinion.
The declaration in this case alleges, that the plaintiff and the defendant were brothers-in-law; that the plaintiff, residing at the time-in the county of Burke, was desirous of removing to some of the southwestern counties, and, in consideration that he would move to the county of Lee, where the defendant resided, he, the defendant, proposed to him that he would purchase a plantation there,, owned by a man named Andrews, for him, (the plaintiff,) and that he should have the plantation at the price that the defendant might be compelled to pay for it; that the plaintiff, in order to be near Me brother-in-law, and to have the comfort and satisfaction of his society, and confiding in Ms good intentions, acceded to the proposition. That, some time after this understanding was entered into, the defendant informed him that he had bought the plantation, and that he and Ms brother had paid for it about the sum of three thousand dollars; and that, confiding in the truth of this statement, he executed to the defendant and his brother, his notes for some twenty-seven hundred dollars, which he paid. That the representation of defendant, that he had paid three thousand dollars for the land, was false and fraudulent. That the defendant had paid for it only some twenty-two hundred dollars, and that he ,knew that his statements about the price paid lor the land, wore false; that they
The Court overruled the demurrer, and that is assigned for error. Much discussion was had at bar upon the character of the contract or agreement entered into between these parties, as set forth in the declaration. On one side it is claimed to be valid, and on the other void for want of consideration. We do not find it necessary, in the view we take of this subject, to determine whether it be or not •a nude pact.
It was argued by the defendant’s counsel, with much
The position assumed by the counsel for the defendant in this case, is better stated in the language of Grose, J. in the great case .of Pasley vs. Freeman, reported in 3 T. R. 54, than any which I have at command. In enumerating instances in which the action of deceit will not lie, Mr. Justice Grose, in the dissentient opinion which he gave in that case, says : “ That if the assertion be a nude assertion, it is that sort of misrepresentation, the truth of which does not lie alone merely in the knowledge of the defendant, but may be inquired into, and the plaintiff is bound so to do, and he
But we will inquire further into the law of deceit, as applicable to this cause. In the early cases, it was held necessary that the party making the affirmation, should be a party to the contract, and that there should be a promise, express or implied, that the fact is true which is misrepresented. See 3 T. R. 52 a 65 and cases there cited. If this were now the rule, the defendant would be liable to the action; for his fraudulent representations grew out of a matter of agreement between himself and the plaintiff, touching the purchase of the land, and in my opinion amounted to a promise that the fact misrepresented was true. He had before undertaken that the representation should be true. Now, however, the action will lie for a false affirmation touching the credit of a third person, when the person affirming has no interest to misrepresent, by which another is injured. This position was taken and held by the Court in Pasley vs. Freeman, 3 T. R. 51. That case was brought to recover damages upon the false affirmation of the defendant, that one Falch was “safely to be trusted and given credit to.” The action was sustained by Lord Kenyon, and Buller and Ashurst, Justices.—Grose J. dissenting. It is worthy of remark, that Mr. Justice Grose himself admits; that if there be damnum cam injuria, the action may be maintained; his dissent was put upon the ground that in that case there was fraud but no injury. The doctrine asserted in Pasley vs. Freeman, is now well settled both in England and America. See 1 East, 318; 2 East, 92; 3 Ves. & Bea. 110; 5 Bos. & Pull. 241; 1 Days' R. 22
The foundation of this action is fraud and deceit in the defendant, and damage to the plaintiff. Fraud without damage, or damage without fraud, gives no cause of action, but when these two concur an action lies. 3 Bulst. 95. And even if the party has no interest in his iniquity—if he profits nothing by his misrepresentation, he is still liable; for that only proves his malice to be the greater. Much more is he liable, if as in the case now being considered, he is interested in his iniquity, and realises a handsome profit upon his villainy. Here there is an union of fraud and damage—a false assertion, a knowledge of the falsity of the fact stated, and an interest in the results of the statement. The record shows all these things, and the demurrer admits the record to be true. And here we might rest our judgment; but there are yet some principles relevant to this case to which it may be well briefly to advert.
“ The inference of fraud, (says Chancellor Kent) is easily and almost inevitably drawn, when there is a suppression or concealment of material circumstances, and one of the contracting parties is knowingly suffered to deal under a delusion. It was upon this ground that Lord Mansfield must have considered that selling an unsound article, knowing it to be unsound, for a sound price, was actionable. It is equivalent to the concealment of a latent defect, and the ground of action is the deceit practised upon the buyer. The same rule applies to the case where a party pays money in ignorance of circumstances, with which the receiver is acquainted cmd does not disclose, and which if disclosed would have prevented the payment. In that case the parties do not deal on equal terms, and the money is held to be unfairly obtained and may be recovered back.” 2 Kent, 483; 1 Brod. & Bingh. 289; 9 B. & Cress. 577; 4 Metcalf R. 381; 1 Story’s Comm. on Eq. Jur. p. 201; 25 Wendell, 399. The plaintiff in the case before us, was in ignorance of the real amount which the defendant paid for the land; this knowledge was of course in possession of the defendant, and not only not disclosed, but a representation made relative to the amount wholly inconsistent with the fact. If the plaintiff had known that the defendant paid only twenty-two hundred dollars for the land, he would not have paid him twenty-seven hundred. The parties did not deal on equal terms, and the case is within the principle asserted by Chancellor Kent,
By previous understanding, the plaintiff in the case before us, had consented to rely upon the particular of the defendant, as to the price to be paid for the land. He had already reposed confidence and agreed to trust him; his particular was falsely rendered. Is not the case analogous in principle to the case reported in Lord Raymond ? Upon the authority of the case in Lord Raymond," Abbott, C. J. determined, in Dobell vs. Stevens, that “ where the vendor of a public house made, pending the treaty, certain deceitful representations respecting the amount of business done in the house, and the rent reserved for a part of the premises, whereby the plaintiff was induced to give a larger sum for the premises,” an action would lie for the deceitful representations; the Chief Justice, remarking, “ here the plaintiff did rely upon the assertion of the defendant, and that was his inducement to the purchase. The representation was not of any matter or quality pertaining to the thing sold, but was altogether collateral to it.” 3 Barn. & Cres. 612; 10 Eng. C. L. R. 201 a 202; 1 Wheat. Selwyn, 649; Carth. 90; Salk. 210.
I do not say that the law 'can take cognisance of every moral delinquency amongst men;'that is wholly impracticable. There are many things left without remedy, except by an appeal in foro conscimtice to the party. It cannot, however, have escaped the observation of the learned reader, that the courts of this country and England, have gradually raised the standard of legal propriety towards that of moral rectitude. With Pothier I admit that, “ as a matter of conscience, any deviation from the most exact and scrupulous sincerity is repugnant to the good faith that ought to prevail in-contracts, any dissimulation concerning the object of the contract, and what the opposite party has an interest
So let the judgment of the Court below be affirmed.