Dye v. Wall

• Decision Date: 31 March 1849
• Docket Number: No. 83.,83.
• Citation: 6 Ga. 584
• Parties: George W. Dye, plaintiff in error. vs. Wiley Wall,defendant.
• Court: Georgia Supreme Court

6 Ga. 584

George W. Dye, plaintiff in error. vs. Wiley Wall, defendant.

No. 83.

Supreme Court of the State of Georgia

MARCH TERM, 1849.

Action on the case for deceit, in Elbert Superior Court. Tried before Judge Sayre, March Term, 1849.

George W. Dye filed his petition in the Superior Court of El-bert county, setting forth, that "heretofore, to wit: on the 24th day of May, 1842, your petitioner, at the special instance and request of said Wiley Wall, bargained with the said Wiley to buy of him a certain negro boy slave named Ben, at and for the price or sum of $330, and the said Wiley, by then and there falsely and fraudulently warranting the said negro boy to be sound, then and there, on the day and year aforesaid, sold said boy, Ben, to your petitioner." This count alleged the boy to be unsound, and a scienter on the part of Wall.

A second count in the declaration was similar to the first, so far as the allegations specifying the contract. A third count was similar, except it alleged the warranty to be, that Wall warranted "the boy to be sound as far as he knew."

Upon the trial the plaintiff offered in evidence the following bill of sale to prove the sale:

"Received, of George W. Dye, six hundred and eighty dollars, in full payment for two negroes, to wit: Nancy, a girl, about twelve years of age, Ben, a boy, about eleven years of. age. The said negroes I warrant to be sound so far as I know. The right, title and claim to said negroes I do bind myself, my heirs, &c. to defend to the said George W. Dye, his heirs, &c. forever against the claim or claims of all and every person or persons whatsoever.

"In witness I have hereunto set my hand and seal, this 24th May, 1842.

"WILEY WALL.

"Test: Bud C. Wall.

Nathaniel Gray."

To this evidence defendant's counsel objected, because the written contract is not set forth in either of the counts of the declaration.

The Court below sustained the objection and ruled out the testimony, and this decision is alleged to be erroneous.

McMillan, represented by W. C. Dawson, for plaintiff in error.

T. R. R. Cobb, for defendant.

By the Court.—Nisbet, J., delivering the opinion.

The declaration in this case contains a count upon the contract of warranty, contained in the bill of sale, to the admissibility of which in evidence exception was taken, and the plaintiff was put upon his election, whether he would rely upon that count or upon the counts for the fraud and deceit in the sale. He elected to rely upon the latter, to support which the bill of sale was offered in evidence. It contains a qualified warranty of soundness. The ground of objection to it as evidence is, that it is not set forth in either of the counts of the declaration. Is this necessary? Were it offered under the count on the contract, it is clear that it would not be admissible unless correctly set forth. Whether a plaintiff can, in the same action, in different counts proceed for the fraud and on the contract of warranty, is a question not made by this record, and upon which we express no opinion. As this case is made before us, the question is the same as it would be if there were no count upon the contract. The question then is this—in an action for fraud and deceit in the sale of a slave, is the written evidence of the sale, which contains a warranty, admissible when it is not described in the declaration?

I apprehend there is no doubt but that a party may, where there is an express warranty, waive his right to go thereon and proceed upon the fraud. Fraud vitiates all contracts, and is, of itself, a...