5 Cranch 439 | U.S. Circuit Court for the District of District of Columbia | 1838
Concurrence Opinion
concurred.
Mr. Brent then moved to amend the verdict so as to make it applicable to the second count only ; and cited Bernard v. Whit
Mr. Key, contrá. In the case of Williams v. Breedon, (1 B. & P. 329,) there was a certificate of the judge that the jury gave their verdict for damages upon evidence applicable only to the good count; and therefore the Court had a right to alter the verdict, which was general, so as to apply it only to the good count, and to enter a verdict for the defendant upon the other count. But in the present ease there was no such certificate, nor any other means of knowing on which count the jury found their verdict ; and in the same ease of Williams v. Breedon, the Court said that as there was evidence applicable to both counts, if there had been no other evidence to show on what ground the damages were given by the jury, it would not be competent for the Court to alter the verdict. Stephenson v. Hayden, 2 Mass. Rep. 406; Barnes v. Hurd, 11 Id. 57, 58; Sheely v. Biggs, 2 Har. & John. 364.
But the second count is as bad as the first. There is no scien~ ter that the defendant sold the slave with intent that she should be carried out of the district.
Cranch, C. J. The only misrepresentation of fact, stated in this second count, is, that the defendant represented that he “ desired” the slave “for his own use;” but that representation is not averred to be false; it is not averred that the defendant did not desire the slave for his own use.
The other supposed misrepresentations are only breaches of promise or contract, for the performance of which, the plaintiff relied upon the credit of the defendant.
It is true, that the plaintiff “ declares that the said representation, declarations, and promises, were utterly false and deceitful,” and that “ at the time the defendant gave himself out as wishing to purchase the slave upon the conditions,” &c., “ and for his own use,” &c., he had engaged to sell the slave to a negro-trader who he knew wanted to transport her, &c.; but this is no direct denial that the defendant “ desired the slave for his own use.”
If this count is to be considered a count for money obtained by false pretences, the pretence should have been distinctly averred, and its truth denied in terms.
The mere non-performance of a promise is not such a deceit as will support an action of deceit. The remedy is an action of assumpsit, to which the general issue is not, not guilty, but non assumpsit.
I am, therefore, of opinion, that the second count as well as the first is bad, and that judgment must be arrested upon both.
The other judges concurred.
Mr. Brent then moved for leave to amend the declaration, and for a venire de novo ; and cited the case of Golding v. Good, in this Court, at December term, 1821, (not reported,) and Semmes v. Sherburne, at December term, 1825, (2 Cranch, C. C. 446,) in which case it is said judgment was arrested for a fault in the declaration, and the Court gave leave to amend on payment of the costs of the term; but I have no note of the point, and no note of the case of Golding v. Good. Cur. ad. vult.
The CouRT, (nem. con.) at November term, 1838, refused leave to amend.
Lead Opinion
In the case of Price v. Read, (2 Har. & G. 291,) from which this declaration was drawn, there was no question made as to the validity of the couhts in that declaration; nor did the counsel for the defendant argue the case before the court of appeals; and therefore the case is of little weight upon that question.
The substance of the first count is, that the plaintiff was induced to sell the slave for less than her value, by the defendant’s agreement that she should not be removed from the District of Columbia ; yet the defendant sold her to a negro-trader, living in the district, by means whereof she has been removed from this district; and so the defendant deceived and defrauded the plaintiff.
Here is no false affirmation of a fact, but, at most, only a breach of promise. No deceit is averred previous to the sale by the defendant; and the deceit, if any, was subsequent to the sale, and consisted only in a disregard of the agreement; and was only that kind of deceit which every debtor practices when he refuses to pay his debt according to his promise.
Even if it had been an action of assumpsit, instead of deceit, there is no cause of action alleged. The promise was, that she should not be removed from the district; the breach is, that the defendant sold her to a negro-trader living in the district, by means of which sale she was removed; but it is not averred that this last sale was made by the defendant with intent that the slave should be removed, or that the defendant caused the removal. There was no engagement on the part of the defendant that he would not sell the slave within the district, nor to a negro-trader.
This count may be true, and yet the defendant may have taken an obligation from his vendee that the slave should not be removed. I think the count is bad, and that, as the verdict is general, the judgment must be arrested.
