3bu 174 138 89 Dent vs. McGrath. CASE 54-PETITION ORDINARY-FEBRUARY 1. Dent vs. McGrath. 1. 2. APPEAL FROM FLEMING CIRCUIT COURT. The answer not controverting the allegations as to the want of title in Wilson and the owner's recaption of the stolen buggy, there was no necessity for a judicial eviction. An auctioneer's assurance to bidders that "he knew Wilson well (who was having the buggy sold), and he was all right, and he (auctioneer) would warrant that his title was good," amounts to a warranty. The buggy having been stolen by Wilson, such assurances by the auctioneer were constructively, if not actually, fraudulent. They might be deemed actually fraudulent, as made to increase his fees, which was a valuable consideration to him for either his warranty or misrepresentation. 3. False affirmations, tinged with actual fraud malo animo, are excepted from the operation of the statute (Warren vs. Barker & Co., 2 Duvall, 156), and should always be actionable without written evidence. W. H. CORD, CITED For Appellant, 2 Duvall, 156; Warren vs. Barker & Co. 1 Metcalfe, 571; Tipton vs. Triplett. Revised Statutes, chapter 22, 1 Stanton, 264. 3 Marshall, 448; 15 B. Mon., 445. 4 Monroe, 9; Waggener vs. Bells. 6 B. Mon., 473; 3 J. J. Mar., 490. · D. K. WEIS, 2 Kent, page 536. CITED 5 Gill & Johnson, 110; Hyatt vs. Boyle. For Appellee, Dent vs. McGrath. JUDGE ROBERTSON DELIVERED THE OPINION OF THE COURT: The appellant, as auctioneer, sold to the appellee, as highest bidder, a buggy as the property of one Wilson. The persons present at the sale, distrustful of the title of Wilson, who was a non-resident stranger, seeming reluctant to bid, the appellant, to inspire confidence and procure a good price, announced that "he knew Wilson well, and he was all right, and he (auctioneer) would warrant that his title was good." That assurance stimulated bidding, and seems to have induced the appellee to buy the buggy, and afterwards to sell it in good faith to one Jones, from whom it was subsequently taken by a citizen of Indiana, who satisfied him that it was his property, and had been stolen from his stable by Wilson, afterwards a convict in the Ohio penitentiary. The appellee having reimbursed Jones, brought this action against the appellant for damages resulting from his false representation and assurance, and recovered a judgment for the amount he had paid and interest. The answer not controverting the allegations as to the want of title in Wilson and the owner's recaption, there was no necessity for a judicial eviction; and the whole case depends on the question whether the appellant is legally liable for his false and delusive assurances. Those positive and unqualified affirmations amounted to a warranty, and were also constructively, if not actually, fraudulent; and it seems to us that they might be deemed actually fraudulent, as made to increase the appellant's fee, which was a valuable consideration to him for either his warranty or misrepresentation. The 1st section of chapter 22, page 264, Stanton's Revised Statutes, is relied on as a bar. That section is not applicable to this case. It only provides that "no action shall Dent vs. McGrath. be brought to charge any person for a representation or assurance concerning the character, conduct, credit, ability, trade, or dealings of another made with intent that such other may obtain thereby credit, money, or goods". "unless the representation" or "assurance be in writing." The representation in this case was made, not to enable Wilson to obtain credit, or goods, or money, in the sense of the statute, for his own sole benefit: it was made more for the benefit of the appellant himself. In the case of Warren vs. Barker & Co., 2d Duvall, 156, the court excepted from the operation of the statute false affirmations, tinged with actual fraud malo animo, which should always be actionable without written evidence. We are, therefore, of the opinion, that there being a binding consideration to the appellant, and the court, moreover, having a right to infer actual fraud in his false assurances, and the statute not applying to the facts proved, the judgment ought not to be reversed, but should be, as it hereby is, affirmed. Thomas vs. Porter. CASE 55-PETITION ORDINARY-FEBRUARY 1. Thomas vs. Porter. APPEAL FROM FLEMING CIRCUIT COURT. 1. The abolition of slavery, by the action of the government, was a contingency, like that of the death or escape of the slave, to be risked by the purchaser. 2. An order for part of the amount of a judgment is not an assignment of the judgment, but evidence of an indebtedness which might be enforced on refusal to accept or pay the order. W. H. CORD, CITED For Appellant, 8 B. Mon., 169; 2 Dana; Glass vs. Read. W. S. BOTTS, CITED For Appellee, 2 Dana, 191; Hughes vs. Todd. 4 Littell, 237; Robertson's adm'r vs. White. 2 Dana, 414; Early vs. McCarl. 2 B. M., 81; 2 Wash., 191; 4 J. J. M., 63. 1 Duvall, 326 ; Harrison vs. Wilson, Hicks, &c. Civil Code, sec. 124. JUDGE HARDIN DELIVERED THE OPINION OF THE COURT: If it was true, as alleged by the defendant, that the order for one hundred dollars was drawn by Thomas on Proctor, in consideration of the price of a slave sold to Thomas by the appellee, which, shortly afterwards, be VOL. III-12 Thomas vs. Porter. came free by the amendment of the Federal Constitution, that contract did not import a guaranty of the service the slave might render; and the abolition of slavery, by the action of the government, was a contingency, like that of the death or escape of the slave, to be risked by the purchaser; and the fact that it happened, was no such failure of consideration as would constitute a defense to the action. As to the other point raised, that the order was constructively an assignment of part of a judgment, and imposed on the appellee the duty of proceeding to enforce it, before looking to the drawer of the order, we do not so regard it; but, in our opinion, the circuit court properly treated it as the evidence of an indebtedness from the appellant to the appellee, which the latter might enforce on the refusal of Proctor to accept or pay the order. Wherefore, the judgment is affirmed. K |