Bennett v. Terrill

By the Court. McDonald, J. delivering the opinion. ;£1.] The declaration states that the defendant well knew [86] that the said James 0. Wilkerson was, at the time he spoke ■to the plaintiff of him, in bad and insolvent circumstances, •and not fit to be trusted. We find no fault with the charge of the Court. It was for the Jury to deliberate on the facts and determine from them whether the defendant had asserted that Wilkerson was good and solvent, assuming to know •his circumstances: whether he was insolvent at the time, whether the defendant was benefited by the assertion, and the plaintiff relying on it was injured by it. After the charge was given, the Counsel for the defendant inquired of the •Court, as the Jury were retiring to consider the cause, (to state the question as it is understood by this Court,) “ if the defendant was liable, whether he made the assertion fraudulently or not” — and the Court gave an affirmative reply. The Court erred in the answer he gave to the question, and as it ■was calculated to mislead the Jury, we think the Court did ■right to correct his error by awarding a new trial to the defendant. There must have been proof of fraud and damage to entitle the plaintiff to recover. Falsehood, or in the plainer language of some of the authorities, a lie, without damage, will not entitle the plaintiff to recover; but if there be damage with a lie, there is deceit, and injury to the party injured by the deceit is entitled to redress. Justice Butter defines a bare, naked lie to be, “the saying a thing which is false, knowing or not knowing it to ■be so, and without any design to injure, cheat or deceive another person.” Such a falsehood is harmless to all but him who utters it, and no action lies upon it. If a falsehood be told with the intention to deceive and injure another, and that other does not act on it, and therefore receives no damage from it, no action lies, although the person intended to be deceived does the act to his damage. But if a falsehood be told to induce a person to act upon it, the person telling it, knowing or not knowing it to be false, and that other acts upon it and is damaged thereby, he is entitled to his action upon it. But it must be borne in mind that there is a difference between a declaration founded on an error of judgment and a [87] falsehood. A man may err in judgment upon known facts,, and, therefore, draw an erroneous conclusion, but he who-speaks without a knowledge of facts upon which his judgment is to act, and he makes a positive declaration is as much guilty of an actionable falsehood, if his statement be false, and-another is endamaged thereby, as if he had known the statement to be false at the time he made it. Let the judgment be affirmed.