Thomas v. McCann
| Decision Date | 17 June 1844 |
| Citation | 43 Ky. 601 |
| Parties | Thomas v. McCann, & c. |
| Court | Kentucky Court of Appeals |
Fraud. Slaves. Vendor and vendee.
APPEAL FROM THE FAYETTE CIRCUIT.
Shy for appellant.
Sayre for appellees.
WHEN a vendor asserts or affirms the soundness of the article sold he states that which, in general, is not the subject of absolute certainty, but rests frequently in mere judgment or opinion. He is, therefore, commonly understood as making the assertion upon his belief or best opinion, and is not liable to the charge of fraud or deception, if the assertion be in fact comformable to his belief and best opinion. The assertion being in effect, that such is his belief, opinion, or judgment, it is not in a bad sense false, and therefore, is not fraudulent, though it be not actually true, unless he knew or had reason to believe that the fact was otherwise, or unless it be shown that his belief or opinion was different from his assertion.
A vendor who gives an opinion honestly, of the soundness of an article, is not liable to the charge of fraud, but if the affirmation be of a fact, which from its nature may be ascertained with accuracy, and which the owner is presumed to know, as the age of a slave which he is selling, and made without reserve, qualification, or reference to the means of his knowledge, it will not be understood as mere judgment or opinion.
But when the assertion or affirmation relates to a fact of such a nature as to be generally ascertainable with accuracy, and which the owner or vendor is generally presumed to know with reasonable exactness, as the age of a slave which he is about selling, his positive assertion, made without reserve or qualification, or reference to his means of knowledge, will not be understood as a statement of his judgment or opinion merely, but as a statement of a fact which he knows, or which he at least believes to be true, upon such information as would satisfy a prudent man.
It might indeed, be questionable whether a positive assertion of such a fact could be justified, if it were untrue, by showing that it was made according to information received and believed, but not referred to in making the assertion. But be this as it may, it certainly could not be justified by mere ignorance of the truth, or by belief or opinion, founded on mere appearance or the like, unless perhaps it those cases of youth and old age, when appearance alone furnishes a reasonably accurate indication of the real age, for the impression necessarily produced, and therefore, as it may be said, the impression intended to be produced by such an assertion, is that it was founded, not upon ignorance but upon knowledge, or if founded on belief, that it was a belief not resting on conjecture merely, but upon satisfactory information. As the person making such an assertion in negotiating a sale, intends it to be...
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