Morrow's adm'r v. Bailey

BROWN, President. This was an action of debt brought by the defendant in error against the plaintiff in error, in the circuit court of Lewis county, upon a note given for the balance of the purchase money of certain slaves. The defendant in the court below pleaded specially under the statute, that the vendor of the slaves warranted them to be sound, and that one of them, Eliza, was not sound but diseased, by reason of which he had sustained damage to an amount exceeding the amount of the note sued on, which damage he asked to be ascertained and set off against the plaintiff’s demand. The pleas being sworn to, the plaintiff replied generally, and upon the trial of the issues the defendant offered in evidence a receipt bearing even date with the note sued on by the plaintiff Bailey, for the portion of the price of said slaves paid down, also for the note sued on, as given for the balance of the price of said slaves, and containing also a warranty of the soundness of the slaves. The defendant having proved the execution of the said receipt by a witness, Hall, it was read to the jury; and thereupon the same witness was called and examined for the plaintiff, and further proved, that the plaintiff refused to sign said paper until the defendant’s intestate, Morrow, assured and represented to him that the same was not a warranty of the soundness of the said slave Eliza, but only warranted the soundness of the title to the said slave, and that he signed said writing because of such representation and assurance made by the said Morrow and said witness to him, the plaintiff! To the admissibility of this evidence the defendant, by his counsel, objected, but the objection was overruled and the evidence admitted by the court; whereupon the defendant excepted. The case was submitted without argument in this court, and the only error assigned in the petition is the admission of the said evidence of the witness Hall. Moneure, J., in delivering the opinion of the court in the case of Harrison vs. Middleton, 11 Gratt., 527, said: “If the paper was corretly read to the defendant at the time of its [330] execution, his misunderstanding of it could not affect its validity. And so far as the evidence offered tends to show a mere misunderstanding of the paper, it is wholly immaterial and irrelevant to the issue. But if it tends in any degree, however slightly, to show that the paper was materially misread to the defendant at the time of its execution, and that he was thus induced to execute it, the evidence is admissible.” And this is certainly the settled law of this State. In the present case it cannot be said that the paper was misread to the party executing it, but he was induced to sign it against his own understanding and convictions of its plain meaning; in reliance upon the representation and assurance of the defendant’s intestate, the said Morrow, and the witness Hall, that it contained no such warranty of the Soundness of the slave. This would seem to be a gross and deliberate fraud in the procurement of the signature of the party to the paper. And what is marvelous in the ease is, that a man who understood, as the plaintiff seems to have done, (and so refused at first to sign it on that account), a paper whose language was as plain as could be written or spoken, yet accepted the other party’s assurance that when the paper said “Eliza and her two boys I warrant sound,” it meant that he did not warrant them sound. Nor is the marvel less that the wifi ness, who proves the fraud, should himself have joined in the misrepresentation and false assurance. Had this been an action upon the warranty, it would seem clear that the fraud might be pleaded under the statute. Code 1860, chapter 172, sec. 5. And it is equally clear, that under the 9th section of that chapter the plaintiff might make the same defence by way of replication to a plea filed under that act. In this case, however, there was no special replication setting forth the fact that the warranty mentioned in the pleas, was procured by fraud, but a general replication only to the pleas, and that not sworn to, as the statute in that case provides. But it must be borne in mind that the plea of breach of warranty, is not founded on, nor does it describe [331] the written warranty, by date or otherwise, but avers a warranty of soundness generally, without saying whether written or unwritten. And upon the trial of the issue only, the paper warranty is produced to prove the warranty pleaded, and the question here is, whether it can be met in this collateral way, or avoided by showing that it was fraudulently procured. Ho sufficient reason is perceived why it may not be done. Until the paper was produced and relied on at the trial, the opposite party could not know that such use would be made of it, as the plea did not purport to be on such paper. I think, therefore, that there was no error in the ruling of the circuit court in permitting the evidence of the witness, Hall, to go to the jury along with the said paper, as evidence tending to prove the character of the transaction, whether fair or fraudulent. The judgment, therefore, should be affirmed, with costs and damages to the defendant in error. Judge Ervine concurred. Judgment arríeme».