#### HENRY STOUT v. CHARLES H. HARPER.

The purchaser of cotton, put up in bales, is not bound to suppose that they are fraudulently packed with sand, and other weighty substances included, and no degree of diligence is required of him in inquiring into such a thing.— The rule caveat ernptor, does not apply when a fraud of this kind has been practiced.

Actiox ok the case for a deceit, tried before Caldwell, J., at the last term of Alamance Superior Court.

The plaintiff produced evidence tending to show that the defendant, who resided in Greene county, in March, 1857, sent seven bales of cotton to the railroad station at Goldsboro’, for the plaintiff, which there weighed between thirty-nine hundred and four thousand pounds; that the defendant, soon thereafter, came to the station and enquired as to the weight of the cotton, and on being told, said that it had not held out with the weight at his plantation; that the cotton was dispatched from Goldsboro’ for the plaintiff, directed to Graham on the North Carolina Eail Eoad, and in June or July of the same year, was carried to the Cane Creek Factory in Ala-mance county; that at Graham, the bales were seen to be bursted, the cotton to be of inferior quality, and mixed with sand; that on being taken to the factory, it was put through a process called “ willowing,” and from the seven bales there *348was cleaned 1579 lbs. of sand ; that the cotton, in consequence of the sand and soil mixed with it, was not worth more than five or six cents per pound. The witnesses all concurred in stating that from the time of the arrival of the cotton at Graham, its quality and the intermixture of sand, was obviously to be seen upon examination. The defendant produced a witness to show that the plaintiff told him, in March, 1857, that he had bought as much cotton as he vmnted, and had given only twelve cents per pound for it. In reply to some remark of witness, as to the lowness of the price, plaintiff said that he did not buy it as a first rate article — that it was of the last picking.

Defendant also called a witness who stated that he was the overseer of the defendant, and that he overlooked the picking from the field, of a part of the seven bales sent to Goldsboro,’ and the ginning and packing of the whole of it; that he put more than half the cotton in the press himself; that it did not have any mixture of sand in it, to his knowiedge; nor had he any reason to believe that the defendant had any such knowledge. Tie further stated, that after the cotton had been ginned and packed, it was piled up in the gin-yard, and covered with plank to protect it from the weather; that after this, in the month of March, 1857, he saw the plaintiff and defendant near the cotton so situated.

Another witness testified, that he was a neighbor of the defendant; that it was not usual, in that part of the country, to pick out cotton as late as February, — that he saw defendant’s cotton field in February, 1857, and thought it w’as as good as a lot of his own, picked out in that month, which he sold in June succeeding, for 13J cents per pound in Wilmington. The defendant contended that by ordinary diligence, the plaintiff could have seen the sand .in the cotton.

His Honor instructed the jury that if the plaintiff, bjr ordinary diligence could have discovered the sand in the cotton, and failed to exercise such diligence, he could not recover, for in such cases he was not allowed to say that he was deceived. Ho special instructions were prayed.

*349Yerdict for the plaintiff, and judgment and appeal by the defendant.

Norwood and W. J. Long, for the plaintiff.

Graham, for the defendant.

Battle, J.

The only question presented by the bill of exceptions, is whether the plaintiff exercised ordinary diligence by means of which he might have discovered the damaged condition of the seven bales of cotton, which he purchased of the defendant. This question is admitted to be one of law to be decided by the Court, but if it be submitted to the jury and they find a correct verdict, the error in submitting it to them will be cured. See Hathaway v. Hinton, 1 Jones’ Rep. 242, and the cases therein referred to.

It is a well established rule that the purchaser of an article cannot sustain an action for a deceit, if, by the exercise of ordinary prudence, he could have ascertained the defect complained of. This is clearly shown by the authorities cited by the defendant’s counsel. Fagan v. Newsom, 1 Dev. Rep. 20; Fields v. Rouse, 3 Jones’ Rep. 72; Fulenwider v. Poston, ibid 528; 2 Stark Ev. 262.

The rule will not apply where the seller uses any improper means to prevent the buyer from making inquiry; 2 Kent’s Com. 487; Simmons v. Horton, ante 278, decided at this term.

The counsel for the defendant contends that the rule applies to the present case, because it was proved that when the plaintiff bought the cotton, he was near it and might easily have examined it, and found out what was its quality and condition. To this the plaintiff’s counsel replies, that the defendant had used meaus to prevent such examination by having the cotton packed in bales, and piled up and covered with plank.

We do not believe that the cotton bales were piled up and covered for such improper purpose, but solely for the purpose stated by the witness, of protecting it from the weather. We are, nevertheless of opinion, that as the cotton was packed in *350bales and piled up as described, the plaintiff could not, from any inspection of the exterior of the bales, have discovered the sand which was mixed with the cotton, and there was nothing to excite his suspicion that any such fraud had been practiced. Oases of this kind of deceit are so rare, that we think buyers may, without any imputation of negligence, trust to the honesty of the sellers. The mode of examining bales of cotton for the purpose of ascertaining the quality of the article by ripping them.open with a knife, as suggested by the defendant’s counsel, may be very proper, and the buyer who neglects it cannot, perhaps, be heard to complain that the cotton was not of so good a quality as, from the representations of the seller, he had been led to suppose. But, to cut open a bag of cotton for the avowed purpose of seeing whether it was not filled, in part, with sand or stones, is a very different matter. To most planters, it would be considered and treated as a direct insult, and would probably be resented on the spot in such a manner, as to lead to a breach of the peace.

Our conclusion is, that this is not a proper case for the application of the celebrated maxim of cmeat eimptor, and that the plaintiff is entitled to have the judgment of the Superior Court affirmed.

Pee CüRiam, Judgment affirmed.