Appeal
from Superior Court, Alamance County; Councill, Judge.
Action
by F. L. Williamson against Lafayette Holt. Judgment for
plaintiff, and defendant appeals. Affirmed.
Where
defendant, a machinist with ample facilities to ascertain the
exact condition of an ice plant, was offered every
opportunity to determine its condition before purchasing it
from the successors of a corporation which had been unable to
operate it successfully, of which defendant was fully
informed, the doctrine of caveat emptor applied, and
defendant in an action for the price was not entitled to a
set-off and damages because of alleged false representations
that the plant with some repairs would turn out 4,400 pounds
of ice a day.
This is
an action to recover $1,050, the amount of a bond given by
the defendant on February 29, 1904, for an ice plant.
Defendant in his answer admitted the execution of the bond
but denied any liability upon it, and set up a counterclaim
on the ground that it was obtained by false and fraudulent
representations as to the conditions and capacity of the
plant. The defendant himself testified: "Q. The first
conversation that you had with anybody concerning this ice
plant was with Mr. Meechum? A. Yes, sir; that is my
recollection. Q. Mr. Meechum had been secretary and treasurer
of this company? A. Yes, sir. Q. He had been operating this
plant? A. Yes, sir; the Home Ice & Refrigerator Company. Q.
You talked with Mr. Meechum about buying the plant? A. He
talked with me. Q. And in that conversation Mr. Meechum told
you that the Home Ice Company had been a failure so far as
making money out of the plant? A. No, sir; he did not say
that. Q. What reason did he give for its having quit? A. He
did not give any. Q. Did Mr. Meechum tell you in that
conversation that the plant would not make ice, or would not
make a proper amount of ice? A. I don't know whether he
said those words. He said that they had given it up. Q. And
they had given it up because the plant would not make its
capacity of ice? A. Because it would not make ice. Q. And in
that very conversation did you not say to Mr. Meechum that
if you had it, you could make ice? A. No, sir; I told him I
could do the repairs. Q. Didn't you tell him that you
knew what to do with it, that it needed a thorough
overhauling and putting in new parts? A. No, sir. Q. You knew
that at the time the original plant was brought to Burlington
that it was a secondhand plant? A. I had heard it. Q. You
knew it, didn't you? A. No, sir; I had very little
business with it. Q. Didn't you supply parts for that
plant when it was originally set up in Burlington? A. I might
have furnished some valves. I had nothing to do with the work
on it, nor with the parts. I furnished some valves and
things. That is all. Q. After your talk with Mr. Meechum
wherein Mr. Meechum told you that they had made a failure of
it, because it would not make its capacity of ice and they
had given it up, you went then to see Mr. Williamson? A. Yes,
sir. Q. And Mr. Williamson went over to the house in which
was the machinery and the plant proper, and you went over it,
did you not? A. Yes, sir; I went over it in company with Mr.
Nicholson. *** Q. At the time when Mr. Williamson was with
you, was Mr. Nicholson with you? A. Mr. Williamson was along
both times, I think. We were there a couple of times. Q. One
of the times that you and Mr. Williamson were there Mr.
Nicholson was not along? A. Yes, sir. Q. Mr. Williamson just
opened the doors, and let you have full swing in looking it
over? A. Yes, sir; we were there together. Q. He did not
attempt to conceal any part of the plant or machinery from
you? A. No, sir; nothing of the kind. *** Q. When you and Mr.
Nicholson went to see Mr. Williamson to buy this plant, you
agreed to buy it from him at the price of $2,500, did you
not? A. Yes, sir. Q. And you immediately then and there
executed your notes for $1,250 each, did you not? A. We
signed notes; yes, sir. *** Q. Didn't that property stand
there absolutely idle and exposed, as property would be, to
the elements during the whole of the winter of 1904? A. Yes,
sir; I think so. *** Q. I ask you to look at that bill, Mr.
Holt, and tell me if it does not contain items for work done
on that plant? A. Yes, sir; that is every bit my handwriting.
Q. Then you did do repair work on that plant? A. Yes, sir;
but I did not know where it was going. Q. You knew, and knew
at the time you were making this purchase, that this was the
identical plant that you had supplied these parts for and had
done this work for? A. I suppose so; yes, sir. Q. How many
times did you go over this plant before you bought it? A. I
was only inside of it twice. Q. You did that before you
purchased it? A. Yes, sir; I think so. It was in the year
1904. I remember it was cold weather about the time we made
the trade. *** Q. You knew that you had supplied parts and
had done some work there? A. They had sent for some fittings.
Q. You knew that the plant had been closed out, and that the
plant was for sale? A. Yes, sir. Q. Did you ask for any
explanation of why the plant was to be sold? A. No, sir. Q.
You did not even ask any questions as to why that plant was
being closed out? A. No, sir; I did not. Q. You did not
pretend to ask whether the old company had made a success of
it or not, a financial success of the plant? A. No, sir; I
did not. *** Q. You have heard the testimony here of these
people. You did go there with Mr. Meechum and Mr. Nicholson
to make examination? A. Yes, sir. Q. Was it before or after
you went with Mr. Williamson? A. I think it was after; but I
cannot say positively which visit was made first. Q. But you
did make two visits and examinations of the plant? A. Yes,
sir. Q. And these gentlemen threw everything open to you, and
let you have free will? A. Yes, sir; they opened the doors.
Q. And gave you free access to every part of the plant? A.
Yes sir." When the evidence was closed, the court, on
motion of the plaintiff's counsel, gave judgment for the
amount of the note, and the defendant appealed.
WALKER
J.
The
evidence in the record is quite voluminous, but fortunately
it is not necessary to state even the substance of it
in order to a correct understanding of the case. At the time
of the sale of the plant, the plaintiff stated to the
defendant that, if he would make some repairs, it would turn
out about 4,400 pounds of ice a day. There was also evidence
that the plant had produced as much as that before the sale.
The defendant lived in Burlington, where the ice plant was.
Before he and Nicholson purchased it, they made two visits to
the ice factory for the purpose of making an examination of
the plant. The evidence of the defendant himself shows that
he was a machinist and the plaintiff a grocer, and that he
and Nicholson were permitted both times to make a free and
full investigation for themselves of the condition of the
plant, and, besides, that he knew it was secondhand when it
was brought to Burlington; it having been in use for some
time. As a machinist he had furnished new valves and other
parts for it when it was originally installed. That the plant
was not in good condition, at the time he and Nicholson
bought it, had come to his knowledge before the time of the
purchase. The few extracts selected at random from the
evidence, as contained in the record and set out in our
statement of the case, will serve to show more definitely
whether or not the defendant was influenced by any fraudulent
representation of the plaintiff to make the purchase. There
was evidence to the effect that the defendant and Nicholson
sold the plant to the Burlington Ice Company at $2,500, which
was the price they gave for it, and received in payment of
the purchase money stock of that company, the par value of
which was equal to that amount and which they took at that
valuation; that the Burlington Ice Company was afterwards
placed in the hands of a receiver at the instance of the
defendant, and that the plant was sold and bought by
Nicholson.
In the
view we take of this case, it falls directly within the
decision of the court in Cash Register Co. v
Townsend, 137 N.C. 652, 50 S.E. 306, 70 L. R. A. 349. In
that case, Justice Brown, for the court, at page 655 of 137
N. C., at page 307 of 50 S.E. (70 L. R. A. 349), says:
"All the authorities are to the effect that, where the
false representation is an expression of commendation or is
simply a matter of opinion, the courts will not interfere to
correct errors of judgment. Walsh v. Hall, 66 N.C.
236. The law will not give relief, unless the
misrepresentation be of a subsisting fact. Hill v.
Gettys, 135 N.C. 375, 47 S.E. 449. What has been called
'promissory representations,' looking to the future
as to what the vendee can do with the property, how much he
can make on it, and, in this case, how much he can save by
the use of it, are on a par with false...
