Fenwick v. Grimes

Cranch, C. J. 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. Thruston, J., absent.