#### Brittain v. Israel and others.

} From Buncombe.

When the purchaser of a slave has, at the time of his- purchase, as full knowledge of a defect in the slave as the seller has, no matter . how he obtained his knowledge, he cannot afterwards recover for such defect.

This was an action on the casé, for a deceit in the sale of a negro, tried before Badger, Judge.

The negro in question had been sold by the defendants, at public sale, without any warranty of soundness, and without disclosure of any defect. — The only question made below, on the evidence, was, whether the plaintiff had a knowledge of the negro’s situation when he purchased him;-and on" this-point a witness swore positively, that he had informed the plaintiff of the defect in the negro before he purchased.

. The Court instructed the jury, that if the plaintiff, at the time he purchased, had as full a knowledge of the unsoundness of the slave as that possessed by the defendants, he was not entitled to recover. The jury found a verdict for the defendants, and a new trial having, been refused, from the judgment rendered plaintiff appealed.

Taylor, Chief Justice.

This action is built upon the allegation, that the seller committed a fraud in the sale *223of property which he knew to he diseased, without disclosing the defect to the buyer; it being probable that, if he had made such disclosure, the latter would not have purchased at all, or, at least, not at the price which he actually paid. The material charge in all the precedents of declarations in this action is, that the defendant falsely and fraudulently deceived the plaintiff in the sale, whereby he lost and whs deprived of all the benefit and advantage which he might, and otherwise would, have derived and acquired from the sale. Now this cannot be predicated of a person to whom the defect was as well known as to the seller; it cannot be affirmed, with truth, that he was deceived, or that he suffered a loss by the fraudulent concealment of the other party; for having knowledge of the defect, it must be presumed that he bid so much the less. If he has been injured by the purchase, he willingly received the injury with his eyes open, nor can he justly claim compensation from any one.

The principle is well established in relation to this kind of action, both in the sale of chattels and real property; for. although every one must admit the immorality of concealing the defect from the purchaser in the expectation of unworthy gain, yet a person buying with full knowledge, can only complain of the intention of the seller, but not of his acts. Thus it is laid down, that an action of deceit does not lie against him who sells without warranty, if the thing sold had a visible malady, which the vendee had an opportunity of discovering; as if a man sell a horse that he knew to be lame, or had any defect which the vendee might perceive by inspection: or if he sell corrupted wine, and the ven-dee taste and approve of it. (1 Com. Big. 170.) Nor is it essential, in every case, that the buyer should actually know of the defect; for in things of a certain value, if the buyer has it in his power to inform himself of the true value, and neglects it, he cannot maintain the action; *224as if a man, wishing to sell a house, asserts that another person would give so much for it, whereas he had not made any offer, the action will not lie, because the buyer mjgbt, by inquiring, have informed himself of the truth. {Ld. Raym. 1118.)

The same rule seems to be applicable to sales equally whether there be warranty dr not; for with the single exception of a horse warranted sound, and he wants the sight of an eye, the discovery of which seems to be a matter of skill, a warranty does not bind, if it be false in the view or knowledge of the vendee; as if cloth be warranted of one colour, and it is of another, .and the Vendee sees it. (1 Com. Dig. 168.) . ■

A further extension of the principle has applied it to cases where the plaintiff sustains a positive damage by the false and fraudulent assertion of the defendant; yet as the falsehood might have been detected by the exercise of ordinary diligence, and all injury averted, it was held that he could not maintain the action: as where the agreement was to carry .goods at so much the hundred weight, and the defendant affirmed they weighed much less than ih fact they .did, whereby the plaintiff was induced to carry them, and lost his horses in the attempt; but it was held, the action would not lie, since it was negligence in the plaintiff not to weigh the goods. {Cro. Jac. 387.)

All this is perfectly conformable to the dictates of rational equity; and we find the writers on general law inculcating the rule to the same extent, in which it is enforced by our municipal law. Thus it is stated in Fvf-fendorf, that as to faults already known to the buyer, it is not necessary for the seller to repeat them; for -$hen the knowledge is equal on both sides, the parties stand on the same footing in the view of justice. Lib. 5. ch. 3. sec. 5.

I am consequently of opinion, that the knowledge of the plaintiff, as to the imperfection of the property, was *225properly submitted to the jury; and having been affirmed by them, justified a finding for the defendant.

Hall, Judge.

I think, in this case, the charge of the judge was right, “that if the plaintiff, at the time of the purchase, had as full a knowledge of the unsoundness of the slave as that possessed by the defendants, he was not entitled to recover;” — -certainly it was immaterial how he became possessed of that knowledge. It is not our duty to inquire whether he possessed it or not; the jury, the proper tribunal, have decided it.. I think the judgment of the Superior Court must be affirmed. .

Henderson, Judge

The law cannot be more correctly or perspicuously stated than in the judge’s charge; for the gist of the action is, that the purchaser was cheated and imposed on by the fraud of the seller. ' When the defect was known to the purchaser, no matter from what source he derived his information, he is not cheated; and some elementary writers go so far as to say, that even where there is an express warranty of soundness, if the unsoundness was apparent, and therefore must have been known to the purchaser, that no action shall lie; not for the reason given by chief justice Blackstone, that palpable defects are presumed not to be within the warranty, but because the warranty being substituted for an actual examination of the property by the purchaser, that he may thereby ascertain its condition and quality, it is confined in its character to those defects which are unknown to the purchaser; for as to those defects which are already known an examination is unnecessary. But be this as it may, no action can be supported on the ground of being imposed on and cheated, in cases where there is no express warranty, when the purchaser knew as much of the defect as the seller; and the facts being fairly left to the jury, the rule for a new trial must be discharged.