#### SAMUEL W. SMITH *vs*C. W. ANDREWS

When a vendee takes an article *at his own risk,*or *with all faults and defects,*the vendor is not responsible for not disclosing any faults or defects he may know to exist in the thing sold; unless he makes use of some artifice or practice to conceal the faults or defects, or to prevent the purchaser from discovering them.

Appeal from the Superior Court of Law of Bladen County, at the Fall Term, 1847, his Honor Judge Caldwell presiding.

This was an action on the case for a deceit on the part of the defendant, in trading a note to the plaintiff for a horse. It appeared in evidence, that a conversation took place between the parties about the trade of a note held by the defendant on one - and endorsed by one Worthington, for sixty-eight dollars, in which the defendant said the note was perfectly good. This conversa*4tion took place at the bouse of the plaintiff, and, shortly after, the parties went to look at the horse, then at the house of a neighbour. It also appeared for the plaintiff, that, after the trade, and when the defendant had just got the possession of the horse, he remarked “there is a good horse I have got for a note on Jesse-and John Worthington,” mentioning the amount of the note ; upon which, a bystander said to the defendant, “ the note is not worth a cent, I would not give a cent for it.” The defendant then said, “whether it is worth a cent or not, I have got a good horse for itand in another part of the conversation he said “he had got something, when he expected to get very little, and the horse was clear gains to him”. It also appeared that the plaintiff lived about twenty miles from said-- and Worthington, and that they were insolvent at the time of the trade, and had been for some months before.

For the defendant it appeared, that, when the parties went to the house where the horse was, they commenced chaffering about the note for the horse ; the defendant said the note was genuine and that he would warrant that it was signed by the parties, and in speaking of the maker and endorser, the defendant said, “ you know that Daniel Baldwin says that-looks like a man that would pay his debts, and as for Worthington, you know him as well as I do.” The plaintiff then asked the defendant to endorse the note, which he refused, saying, that he was a trading man and dealt in notes, but he would not endorse the note of a wealthy man in the neighborhood, naming him; and said to the plaintiff if he took the note, he must take it at his own risk. The plaintiff then took the note, and the horse was shortly thereafter delivered to the defendant.

A witness for the plaintiff proved that the defendant, in his trading, sometimes visited the neighborhood of the parties to the note.

*5The Court charged, that, to entitle the plaintiff to a verdict, he must satisfy the jury that-and Worth-ington were insolvent at the time of the trade, and that the defendant knew it and concealed it from the plaintiff, and though it might be true, that the plaintiff agreed to take the note at his own risk, yet if he was ignorant of the condition of the parties to the note, and the defendant knew it and concealed it, it would be a fraud on the plaintiff and he would be entitled to their verdict. The jury returned a verdict for the plaintiff. A motion for a new trial was made, because of misdirection, which was refused, and the defendant appealed.

No counsel for the plaintiff in this Court.

*Strange,*with whom were *W. Winslow*and *D. Reid,*for the defendants, argued,

1. That no action for deceit is upon a bare silence with respect to defects. *Hammond’s N. P.*326. 1 *Arch-holds’ N. P.*440. 1 *Story’s Eq. Jur. Sec.*212. *Kent’s Com. Sec.*39.

2. That this is especially true in relation to negotiable paper. *Carpenter*v. *Wall,*4 Dev. & Bat. 144. *Ward*v. *Evans, 2*Ld. Ray. 92S. *Clerk*v. *Mundal,*12 Mod. 203.

3. That at any rate it does not lie either for concealment or a false affirmation, unless the plaintiff has no convenient means of detecting the falsehood. *Hammond’s N. P.*329. *Verrón*v. *Keys,*12 East. 632. *Bayley*v. *Merrel,*Cro. Ja. 385. *Saunders*v. *Hatterman,*2 Ire. 32. *Organ*v. *Laidlan,*2 Wheat. 178, and note c. page 185.

4. But that a sale with all faults is conclusive between the parties, unless some artifice is practised to mislead the plaintiff. *Hammond’s N. P.*330. *Pickering*v. *Dawson,*4 Taun. 779.

Daniel, J.

The first part of his Honor’s charge to the jury is unobjectionable, and right in law; but when he proceeded to say, “ though it might be true, that the *6plaintiff agreed to take the note at his own risk, yet if he was ignorant of the condition of the parties to the note, and the defendant knew it and concealed it, it would be a fraud ón the plaintiff, and he would be entitled to their verdict,” we think he eri’ed.

In the case of *Mellish*v. *Matteux,*Peaks’ N. P. cases 115, Lord Kenyon laid down the law as his Honor did in this case ; for he said, “ with all faults” means with all faults unknown to the vendor; but in *Baslehole*v. *Watters,*3 Camp. 154, Lord Ellenborough overruled the case of *Mellish*v. *Matteux,*and his decision is confirmed by the whole Court of Common Pleas, in the case of *Pickering*v. *Dawson,*4 Taunt. 778. The meaning of selling “with all faults,” is, that the purchaser shall make use of his eyes and understanding to discover what defects there are. But the vendor is not to make use of any artifice or practice to conceal faults, or to prevent the purchaser from discovering a fault, which he, the vendor, knew to exist. When the vendee takes the article at his own risk, or with all faults and defects, the vendor is relieved from disclosing any faults he may know to exist in the thing sold; the maxim *caveat emptor,*then applies.

We think that there must be a new trial.

Per Curiam. New trial awarded.