24 S.E. 1 | N.C. | 1896
"This is to certify that, by request of defendant's counsel in the case of W. O. Blacknall against W. H. Rowland et al., from the county of Durham, decided in the Supreme Court of North Carolina at February Term, 1895, I have carefully examined the case and the law bearing upon the same, and the case in
"Suppose, on the other hand, the plaintiff had represented his title to the land to be good, and the defendants had chosen to make *263 no examination of it and to accept a deed without warranty, could they have maintained an action upon the contract as a warranty of title? It seems to me not. The action, in so far as appears, was not for a rescission of the transaction for fraud, but for a breach of a supposed and alleged warranty contained or implied in the terms of the same. Such a warranty seems to me to be negatived by the fact by the agreement the plaintiff was not to be entitled to damages if the representations were found to be untrue upon the examination to be made, but was not to be bound by the contract at all. Suppose the plaintiff had, with or without examination, found the representations to be untrue, and had refused to accept an assignment of the stock or to convey the land in payment for it (which would have been a repudiation of the contract on his part, which he would have had a right to do), could he, notwithstanding, have maintained an action against defendants for a breach on their part of the supposed warranty, expressed or implied therein, of the truth of the representations? Or could he have repudiated the contract on his part and affirmed it as against the defendants? It seems to me not.
"I think the court was in error in treating the contract as other than executory, and just as if the part on which its binding force was conditioned were not in it.
"I further certify that I am a practicing attorney and a member of the bar in North Carolina, and that I have no (421) interest in the subject-matter of said action, and am not and never have been of counsel for any party to the said suit.
"With due and respectful deference to the opinion of any who may not concur with me in this case,
"M. V. LANIER."
This is a petition to rehear the case in
Petition Dismissed.
Cited: Wrenn v. Morgan,