12 N.C. 350 | N.C. | 1827
His Honor, Judge Norwood, instructed the jury that if they believed the defendant, at the time of the sale, had forgotten *228 the information given him by the witness as to the health of the negro, they ought to find for him. But if they collected from the testimony that such information had been given, and not forgotten by him, and that he did not communicate it to the plaintiff, his disbelief as to the truth of the information would not exonerate him from liability, which would depend on the fact whether the negro was well or not.
A verdict being returned for the plaintiff, the defendant appealed. This action is founded on a fraud; to support it, there must be either a fraudulent misrepresentation or a fraudulent concealment. It is not sufficient that the representation be false in point of fact; the defendant must be guilty of a moral falsehood. The party making a representation (352) must know or believe it to be false, or, what is the same thing, have no reason to believe it to be true.
Concealment ex vi termini imports a knowledge of the thing concealed; for a person cannot be said to conceal that which he does not know, and silence as to a fact which the party does not believe to exist cannot be said to be a fraudulent concealment. I cannot therefore agree with the judge below, that the defendant was bound to declare, and was guilty of a fraud if he did not declare, that which he did not believe to exist, although he had been told that it did exist. It should have been left to the jury to say whether the defendant had a knowledge of the unsoundness of the negro.
I disturb this verdict with great reluctance, because I believe it meets both the law and the justice of the case.
PER CURIAM. Judgment reversed.
Approved: Stafford v. Newsom,