Peers v. Davis' Administrators

Ewing, Judge, delivered the opinion of the court. The exceptions to the ruling of the court below, insisted on here, are in excluding the evidence of Koen, administrator of Davis, and one of the defendants ; refusing the second instruction asked by appellant, and overruling motion for a new trial. Upon the first point it does not very clearly appear what was proposed to be proved by the witness Koen. It was stated generally to be representations made by Sebastian, the vendor of the slave in controversy, at the time he sold her [188] to Davis. If these representations referred to the transaction of sale, or any thing relating to the contents of the bill of sale, the evidence was incompetent, because the instrument itself was the best evidence of the- agreement of the parties, and it could not be contradicted or varied by parol evidence. Where the contract is in writing, the instrument is presumed to contain the whole contract. But the facts sought to be proved by these representations are -so vaguely and indefinitely indicated, that upon this ground, if for no other reason, we might well conclude that no error was committed in rejecting the evidence. In such cases this court can not say there is error, unless the facts, which the excluded testimony is intended to prove, are so indicated as to enable this court to determine whether they are admissible, and, if admissible, whether they are material upon this point. Therefore we are of opinion there was no error, for the reason stated, irrespective of the question of the competency of the witness, about which we express no opinion. The second instruction asked by the appellant was erroneous and properly refused. In the first place, the bill of sale in evidence contains a warranty that the negro sold was a slave- for life and no other; and it is not pretended that there is any warranty as to the slave’s age. As to her age there is simply a representation, and that is made in such guarded and cautious terms and with such qualification as clearly to show the vendor’s intention to incur no liability on that score, and to suggest the rule caveat emptor as the one which should- govern the transaction in this respect. But the error of the instruction is in asserting the proposition that a representation by a vendor in the sale of property that is untrue is a fraud upon the purchaser. This is a non sequitur. However representations by the vendor not known to be true may be regarded in morals, they are not such as subject him to legal liability, unless known to be false. Bep-resentations made in the sale of chattels, although untrue in fact, may be made with no design to deceive, or commit a [189] fraud upon the vendor, and may be perfectly consistent with honest intentions and good motives in the transaction. • If the purchaser of the slave were suing for damages upon the ground which is set up as a defence in this action, it would not suffice to allege simply that the seller made false representations as to the slave’s age, or as to any other matter which might be the subject of the alleged misrepresentations. Such facts would constitute no cause of action, and there would be no recovery unless there was an allegation of fraud. In order to make a representation a ground for an action of deceit or fraud, it must be shown that the representation was known to be false, and that it was made with an intent •to deceive, though the known falsity of a representation' would be strong evidence of a purpose to practice a fraud., Where there is no warranty there can be no recovery for¡ false representations made in the course of the sale unless they were known to be such by the vendor. In all such ;, cases the ground of deceit is disposed of when the existence f of the defect is found by the jury to have been unknown to! the vendor. This doctrine is applicable only to the action; or the defence of a deceit in the sale of a chattel. (Jolliffe v. Collins, 21 Mo. 242.) If the slave, owing to her advanced. age and bodily infirmities, was of little value, and the purchaser had a hard bargain, yet he chose to rely upon his own knowledge in making the purchase and not to exact a warranty except as to the single particular already mentioned.- As to the age of the slave, which is represented in the bill of sale as being about fifty-five years, the evidence clearly shows that there was no cause of complaint on that ground; for at the time of the sale and when the bill of sale was being written, several witnesses testify that the decedent, Davis, told the vendor, Sebastian, to represent the age- as the instrument expresses it, and “ not to make her too old” — giving as a reason that he might wish to sell her again. [190] The remaining point is the refusal of the new trial. The bill of exceptions shows that certain depositions offered by-appellants were excluded for the reason that the deponents resided within forty miles of the place of trial. In support of the motion the appellants filed their affidavit alleging that they were taken by surprise by the exclusion of the depositions ; that they were of opinion that the witnesses resided more than forty miles from Farmington; and went into the trial in full confidence that such was the fact, and that they would have the benefit of said depositions. It further alleges that they expect to prove false and fraudulent representations made by Sebastian in regard to the age, qualities and physical condition of the slave. The affidavit contains no averment of merits, or that the verdict is unjust. Moreover, the ground relied upon is insufficient in omitting to state in the affidavit what the depositions contained.. The evidence should have been set out, or at least the substance of it, so that this court could determine whether it was material. It might have been immaterial ; if so, there would have been no cause for a new trial. It is not enough that the party himself states the facts he supposes the excluded evidence will tend to prove. But had the evidence appeared in the affidavit, the facts alleged as the ground for a new trial, it is conceived, would not have warranted it. Surprise in its legal acceptation, it is said, denotes an unforeseen disappointment in. some reasonable expectation against which ordinary prudence would not have afforded protection. Where the witnesses resided, whether more than forty miles from the place of holding court, was a fact of which the party could readily have informed himself by ordinary diligence; and that it was not known is to be attributed to his own laches; and surprise produced by the laches of the party is never a good cause for a new trial. (3 Graham & Wat. New Trials, 949.) The other judges concurring, the judgment will be affirmed.