Opinion
December Term, 1826.
From Chatham.
1. When no loss is occasioned by a falsehood, an action for a deceit will not lie; neither will it when ordinary prudence would have prevented the deception.
2. A being surety for B, is falsely informed by C, administrator of B. that the debt is paid; trusting to this representation. A uses no means to secure himself. Quaere: Does deceit lie?
CASE for a deceit. The allegations of the declaration were that the plaintiff and one Drake became sureties for one Ramsay, to the Bank of Cape Fear; that upon the death of Ramsay, the defendant being his administrator, falsely and fraudulently affirmed to the plaintiff that the note was taken up; upon which affirmation the plaintiff relying, used no means to secure himself; that afterwards, when the assets of Ramsay (70) were exhausted by other debts, and when Drake, the cosurety, "who was at the time of their becoming jointly bound as aforesaid, amply sufficient to pay one-half, had failed and become unable to pay any part thereof," the plaintiff had been compelled to pay the whole debt.
Nash for the appellant.
Gaston for the appellee.
It appeared on the trial that Ramsay died in October, 1820, possessed of a large estate; administration was committed to the defendant in November following; upon which the plaintiff and Drake, fearing that Ramsay's estate would prove insolvent, applied to the defendant, who promised to pay the debt. In March, 1822, suit was commenced by the bank against the plaintiff and the sureties; shortly after which the defendant told Drake, who communicated it to the plaintiff, that the debt was paid; execution for it, however, issued, and was satisfied by the plaintiff.
His Honor, Judge Daniel, charged the jury that if the plaintiff had been lulled asleep by the false declaration of the defendant, and in consequence thereof had been compelled to pay the debt, he was entitled to a verdict, although the defendant had assets sufficient at the time to pay the debt; and that the affirmation made to Drake, and communicated to the plaintiff, was evidence to them.
A verdict was returned for the plaintiff. A rule for a new trial being discharged, and judgment rendered upon the verdict, the defendant appealed.
Several points were made in the cause which it is not necessary to notice.
The declaration is defective for want of an allegation that the fraud charged on Alston was intended to injure Farrar. It is also defective for want of an allegation as to the sufficiency of assets in Alston's hands, for Farrar's indemnity, at the time the assertion was made that the debt was paid, and as to the solvency of Drake at the same time. It states, it is true, Drake's solvency at the time he became joint surety, but that is not the material fact. But (72) there is a substantial error in the judge's charge. He instructed the jury that the plaintiff ought to recover, although it was shown that Alston then had assets. This would destroy the very foundation of the action, for the complaint is, that during the time that Farrar was lulled into security by the fraud of Alston the assets of Ramsay, the fund to which Farrar was to look for his indemnity, were swept away, and that he was left without the means of obtaining satisfaction upon Ramsay's implied promise of indemnity; for the action is not founded on his being obliged to pay the debt, for he contracted that obligation without the agency or interference of Alston. The jury were not properly instructed, and there should be a new trial. What is said above as to there being no charge that the fraudulent act was intended to injure Farrar, was designed to apply to such a case as this, where the injury is not the direct, immediate, and natural consequence of the fraud, for when such is the case, perhaps it needs no averment that such was the intent, as the law presumes that was intended which is the immediate, direct, and natural consequence of an act, and the court, as the law draws the inference, does not require that the jury should do it. As this case may possibly be so amended as to present a statement of facts which will enable the plaintiff to recover, I think it best to reverse the judgment, and award a new trial rather than arrest the judgment. The judge of the Superior Court will then exercise his discretion in permitting the plaintiff to amend.
Without looking strictly into the pleadings in this case, I concur in the opinion that the rule for a new trial should be made absolute, because it does not appear that in consequence of the deceit complained of the plaintiff cannot be compensated out of the assets of Ramsay's estate in the hands of the defendant.
I do not think that either of the two essential grounds of an action of deceit established in this case, viz., a fraud committed by the defendant, or a damage resulting from such fraud to the plaintiff. The fraud is alleged to consist in Alston's telling Drake that he, Alston, had paid off the debt for which the plaintiff and Drake were security. But though this assertion was untrue, the means of ascertaining the truth were completely within the power of the plaintiff; and if it were of sufficient importance to regulate his conduct in the transaction, it would obviously seem necessary, in the first place, to ascertain whether it were true or not. A person of ordinary prudence would not permit himself to be lulled into security by giving full credit to an assertion which was not made to himself, but reported to him by a third person. He would at least have applied to Alston to ascertain the time and circumstances attending the payment, and how far the assertion had been deliberately made. But the sure way would have been to inquire at the bank, whether he were still held responsible for the debt. If the plaintiff was in fact deceived, it was the consequence of his credulity and negligence, and in such a case the law does not profess to administer a remedy.
It does not appear from the declaration or the statement, that any loss was occasioned to the plaintiff which would not equally have happened if the promise or assertion had never been made.
The defendant had no sooner administered on Ramsay's effects than the apprehension was entertained that the estate was insolvent, and the plaintiff and Drake applied in consequence to the administrator, who assured them that he had assets, and would pay the debt. This was about November, 1821, and the plaintiff took no further step; when about four months thereafter a writ was sued out against the administrator and the two indorsers, then at a return (74) term in March, 1822, a joint plea was entered.
It might have been expected that when the administrator had not paid the debt in that time, but suffered the indorsers to be sued, that it would impair their confidence in his promises, and urge, at least, the plaintiff, the only solvent one, to provide for his own security.
But so far from its having this effect, the plaintiff was again quieted, soon after the institution of the suit, by this assertion of Alston, reported to him by Drake, and allowed the suit to depend until the fall of 1824, when the judgment was recovered. I do not perceive that the plaintiff's paying the money was occasioned by the promise or the assertion of the defendant, but rather by his becoming indorser for a person whose estate was probably insolvent from the first; but if not, from his own negligence, in not securing himself when he might do so.
I think the jury have been misdirected in point of law on the merits of the case, and it is not therefore necessary to give an opinion on the minor points made in the cause. There ought to be a new trial.
Judgment reversed.