Hamrick v. . Hogg

12 N.C. 350

Opinion

Henbersost, Judge.

This action is founded on a fraud ; to support if, there must he either a fraudulent misrepresentation, or a fraudulent concealment. It is not sufficient that the representation be false in point of fact; the Defendant must be guilty of a moral falsehood. The party making a representation, must know or be-¡¡eve it to be false, or what is the same .thine:, have no . ° reason to believe ¡Í to be true.

Concealment ex vi termini imports a knowledge of the thing concealed ; for a person cannot he said to conceal that which he does not know, and silence, as to a fact which the party does not believe to exist, cannot be said to be a fraudulent concealment. 1 cannot therefore agree with the Judge below, that (he Defendant was bound to declare, and was guilty of a fraud if he did not declare that which he did not believe to exist, although he had been told that it did exist. It should have been left to the Jury to say whether the Defendant had a knowledge of the unsoundness of the negro.

I disturb this verdict with great reluctance, because I believe it meets both the law and the justice of the case.

Per Curiam. — Judgment reversed.