Coxe v. Whitmire Motor Sales Co.

130 S.E. 841, 190 N.C. 838, 1925 N.C. LEXIS 183

Opinion

Stacy, C. J.,

after stating the case: It is apparent from the face of the record that the judgment entered in this case cannot be sustained. The suit is brought by plaintiff, in his capacity as guardian and on behalf of his wards or their estate. Likewise, the cross-action is directed against the plaintiff in the capacity in which he sues. The defendant’s counterclaim is bottomed on an allegation of deceit, or fraud in the treaty inducing the execution of the lease. Furst v. Merritt, ante, 397, 130 S. E., 40. He has been allowed to recover for false warranty. The renting was not made publicly (C. S., 2171); nor was the lease approved by the clerk of the Superior Court. C. S., 2172.

Conceding that ■ an action for deceit includes false warranty, such as defendant has recovered for here, we are aware of no statute or de- cisión, in tbis State authorizing a judgment to be taken and entered against a ward or bis estate for tbe false warranty of tbe agent of a guardian in representing tbe ward’s property to be suitable for certain purposes, sucb as was done by tbe plaintiff’s agent, according to defendant’s allegation, 'in executing tbe lease now before tbe Court. Tbe law would seem to be otherwise. LeRoy v. Jacobosky, 136 N. C., 443; Female Academy v. Phillips, 68 N. C., 491; Smith v. Kron, 96 N. C., 397.

Tbe question of tbe personal liability of tbe plaintiff is not presented on tbe present record. But for a statement of tbe general rule, see Jones v. Johnson, 178 Pac. (Okla.), 984, 21 A. L. R., 903; 12 R. C. L., 1126 et seq.

Tbe verdict and judgment will be vacated and tbe cause remanded, to tbe end that further proceedings may be bad as tbe law directs and as tbe rights of the parties require.

New trial.