M'Farlane v. Moore
| Decision Date | 30 September 1805 |
| Parties | M'FARLANE v. MOORE. |
| Court | Tennessee Circuit Court |
[ S. C., ante., 32.]
Rule for New Trial.--This was an action upon the case, plea non-assumpsit. M'Farlane had purchased a negro woman of the defendant for full price, and took a bill of sale warranting the property of the negro.
This was an action upon the case in the nature of deceit, for that the defendant assumed upon himself that the negro was sound, when in fact she was not. The evidence showed that the negro had been in a sickly state before the plaintiff purchased her; and that the defendant knew that she had been unwell. Doctor Irvin, a witness for the plaintiff, proved that he had been called to the negro soon after the plaintiff purchased her; that he found her in such a state occasioned by the improper administration of mercury, that he thought her incurable, and that the complaint had been of considerable standing; that the woman afterwards died.Miller, for the plaintiff upon the trial, relied upon the case in Taylor, 17, in which it was decided that a sound price implies a warranty, also Evans' Essays, 20.
Whiteside objected to the reception of the above evidence; the contract of sale having been reduced to writing, no parol proof could be introduced.
Overton, J., was for receiving the evidence, and if any doubts existed, the case might be reconsidered upon a motion for a new trial. White, J., accorded. Campbell, J., being related to one of the parties, did not sit.
The jury found a verdict for the plaintiff at the last term.
Whiteside in support of the rule, argued that it was important to preserve the distinction between written and unwritten contracts. In the first, the parties must be supposed to have put their whole mind into writing. It was a rule of law that no parol proof could be admitted to add to or detract from a written contract. If this were not the case, written contracts would be as fluctuating and as uncertain as verbal. In fact, men never could know the meaning, extent or consequences of their contracts if parol proof were permitted to vary them contrary to the reason and policy of the law.
The questions for the consideration of the jury were, first, whether there was a defect in the property sold; secondly, if a defect existed, was it a material one; thirdly, did the defendant know of the defect before the sale? They found all these facts in favor of the plaintiff, and have assessed the damages to the value of the negro. It has been objected that parol proof has been improperly received; that the whole extent of the contract is embraced by the bill of sale; and nothing can be implied or presumed. The proposition in the manner in which it is laid down can not be maintained. In no instance can evidence be received to contradict a written agreement, nor can such evidence be received to detract from or add to any part of a contract which was within the view of the parties when contracting; these principles, however, do not touch cases where fraud has been practiced. As where an illiterate person executes an instrument of writing which he was incapable of reading, and which was read to him otherwise than it really was written. Suggestio falsi and suppressio veri are sufficient to invalidate a contract on the ground of fraud. In these cases, too, parol proof is receivable. The meaning of the contract evidenced by the bill of sale was, first, to convey the property in the aegro, and, secondly, to warrant that property. No other ideas can possibly be collected from the writing. Nothing can be found in it respecting the health or soundness of the negro. The reception of parol proof to show the soundness or unsoundness of the woman at the time of sale does not contradict or vary the bill of sale. It is a fact collateral to its import and, agreeably to the case in 8 Term Rep. 379, the evidence ought to be received.
The old books on the sale of property state that where a defect in the property sold was visible, the buyer must notice it, nor will he be permitted to have any redress on that account; otherwise, where the defect is invisible, and the seller knew of such defect....
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...principle as the Pennsylvania high court: where there is a tortious injury, the law will provide a remedy. See, e.g., McFarlane v. Moore, 1 Tenn. 174 (1805) ("By the principles of the common law, there can be no injury without a correspondent remedy."). This court concludes that if presente......
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...principle as the Pennsylvania high court: where there is a tortious injury, the law will provide a remedy. See, e.g., McFarlane v. Moore, 1 Tenn. 174 (1805) ("By the principles of the common law, there can be no injury without a correspondent remedy."). This court concludes that if presente......
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...is even touched upon. Indeed, the law of deceit in general seems to have had a rather inconclusive development in Tennessee. See McFarlane v. Moore, 1 Tenn. 174; Baker v. Seahorn, 31 Tenn. 54; Gibbs v. Odell, 42 Tenn. 132; Wynne v. Allen, 66 Tenn. 312; Horrigan v. First National Bank, 68 Te......
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