Farrar v. Alston

• Decision Date: 31 December 1826
• Citation: 12 N.C. 69
• Court: North Carolina Supreme Court
• Parties: JOHN FARRAR v. PHILIP ALSTON.

12 N.C. 69

JOHN FARRAR

v.PHILIP ALSTON.

SUPREME COURT OF NORTH CAROLINA

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. Quœre: 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 Ramsaywere 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.

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.

HENDERSON, J. 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. Butthere 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...