Ray v. Virgin
| Citation | 1850 WL 4353,12 Ill. 216,2 Peck 216 |
| Parties | Aaron Ray, plaintiff in error,v.Kinsey Virgin, defendant in error. |
| Decision Date | 31 December 1850 |
| Court | Supreme Court of Illinois |
12 Ill. 216
1850 WL 4353 (Ill.)
2 Peck (IL) 216
Aaron Ray, plaintiff in error,
v.
Kinsey Virgin, defendant in error.
Supreme Court of Illinois.
December Term, 1850.
In an action on a note given for goods bought at an administrator's sale, the purchaser may show, in defense to the note, that the administrator, knowing the contrary, fraudulently represented the goods to be sound. a
The defendant, Kinsey Virgin, was administrator of an estate. At the sale of the personal property of said estate by said Virgin, the plaintiff in error bought two horses, and gave the note sued on. The suit was brought before a justice of the peace, and a judgment rendered against Ray for the amount of the note, and he took an appeal to the Circuit Court.
Upon the trial in that court, the defendant below, proved that the sale of said horses was made by Ray in person, at a public auction. That he represented that said horses were sound and free from all diseases, except the horse distemper; when in truth, said horses had the glanders and were of no value whatever, and this was known to the administrator when he made those representations, and therefore, that the note was given without any considertion, and was procured by the fraud of said Virgin.
All this testimony was rejected by the judge of the Circuit Court, upon the ground that the false and fraudulent statements of the administrator, whereby he obtained this note for the use of the estate, were not admissible to prove that the note was without consideration; and the only remedy the maker of the note has in such a case is, to pay the note to the estate and sue the administrator in his own right, and make him personally liable for the consequences of his fraud. The jury in the Circuit Court then gave a verdict for the amount of the note, and a judgment was rendered thereon. To reverse this judgment, this case is brought here, and the error assigned is the refusal of the Circuit Court to permit said evidence to go to the jury.
M. McConnel, for plaintiff in error, submitted this cause to the court, ex parte.
CATON, J.
The only question in this case is, whether a party who has given a note for goods purchased at an administrator's sale, may show in his defense to the note, that the administrator
[12 Ill. 217]
fraudulently represented the goods to be sound, when he knew them to be unsound. This precise question was decided in the case of Rice v. Richardson, 3 Alabama, 438, where such a defense was held to be admissible...To continue reading
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Bormann v. Simpson
... ... Calvert, 174 Ill. 500, 51 N.E. 828.) Since the representative sells only the interest that was vested in the deceased, the purchaser acts at his peril, and must inquire into the title and ascertain the quality of the property before he makes a purchase. (Ray v. Virgin, 12 Ill. 216.) Therefore, neither the estate nor the administrator personally are liable for a breach of an implied warranty of quality or title. In this case, however, appellant alleges the breach of an express warranty. The rule of caveat emptor cannot apply in cases where the administrator ... ...
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