Perry v. Johnston

BRICKELL, C. J.—

The silence of a party against whom a claim or right is asserted, is a fact which may be shown in an action for the enforcement of such claim or right; and from it the jury may infer an admission of the truth of the assertion.— Watson v. Byers, 6 Ala. 393 ; Wheat v. Croom, 7 Ala. 349 ; Hicks v. Lawson, 39 Ala. 90 . The rule is said forest “ on that instinct of our nature, which leads us to resist an unfounded demand.” The common sense of mankind is expressed in the popular phrase, silence gives consent, which is but another form of expressing the maxim of the law, qui facet consentiré videtur. The rule involves as facts on which it rests, that it is the interest or duty, of the party to whom-the declaration or assertion is made, to, reply to it. If it-proceeds from one having, or asserting, or authorized to assert, adverse interests or claims, it is in the ordinary course of human conduct, if the truth of the assertion is not admitted, that dissent from it should be expressed. Or, there may be circumstances under which, it would be a duty to dissent, if silence would mislead, and produce injury to others, who may rely on the truth of the assertion. The mere declarations of strangers, with whom the party has no connection, though made in his presence, may be best answered by silence, and from silence no inference against the party should be drawn. “The mere silence of one,” says Mr. Greenleaf, “ when facts are asserted in his presence, is no ground of presuming his acquiescence, unless the conversation were addressed to him, under such circumstances as to call for a reply.”—1 Green. Ev. § 197a. In Jelks v. McRae, 25 Ala. 440 , a slave’s confession of larceny, made in the *652 presence of the master, and in reference to which he was silent, was held inadmissible as evidence against him. In Fuller v. Dean, 31 Ala. 657 , which was an action of slander, the defendant offered evidence showing that prior to the .speaking of the slanderous words, another person had made the same criminal charge against the plaintiff, and it was not denied. This court said: “We can see no principle on which this evidence was admissible, unless it be under the influence of the maxim, qui taeet consentiré videtur; an admission inf erred from acquiescence in the verbal statements of ■another. . . . Now, we do not think the charge made in this case was of a nature to call for a reply; but in the language of Mr. Greenleaf, we think it was impertinent, and best rebuked by silence.”

If it is admitted that the presence of the vendor, at the time of Wilson’s declaration, satisfactorily appears, we do not think the declaration was of a nature to demand any response, and consequently, that acquiescence in it, is not inferrible from silence. At best, it was but an expression of ■ opinion as to the soundness of the animal, strengthened by .an avowal of willingness to be personally responsible, or in the language employed, to guaranty its truth. Such responsibility, it is readily conceived he may have been willing to assume, and yet the vendor unwilling to incur. And the vendor may well have been indifferent whether it was assumed or not. It would be a rigid and hard rule, embarrassing sales, if a vendor was bound to answer every impertinent declaration in reference to the thing sold, made by strangers in his presence, or consent to be bound by it. Or, if he was bound by declarations made by those, having .all the opportunities of knowledge he may have, and yet may not be as prudent as he, is, in its commendations, or in representations of its quality, or value, or condition. Men, ordinarily are bound only by their own conduct or declarations, or the conduct or declarations of those whom they have authorized to act, or to speak for them, and not by the acts or words of mere strangers. The marked distinction between this case, and Atwood v. Wright, 29 Ala. 346 , is, that the declarations admitted in evidence in that case, were of the auctioneer made in the presence of the vendor, and who was regarded as his agent. There is an absence of evidence having a tendency to show, that Wilson had authority to sell, or to warrant the animal, or to act or speak for the vendor. There may be a fraudulent representation without *653 actual declaration from the party making the contract. A tacit acquiescence in a misrepresentation made by another,., the falsity of which is known, or of the truth of which, a vendor has not reasonable belief, from which he derives and intends to derive advantage, may avoid the contract, or give claim to an action for damages, as if the words had been-spoken by him.—Pilmore v. Hood, 5 Bing. N. C. 97; Story on Sales, § 165. But he must act upon such representations,, and must have knowledge that the party with whom he is dealing relies upon therm

The law is now settled in this State, in opposition to the earlier authorities, that a misrepresentation of a materitl fact by the vendor, on which the vendee relies, andJjfSSthe right to rely, although made without a knoy of its falsity, may constitute a fraud on the pry^h^ser, authorizing a rescission of the contract of s.&bé, or if there is no rescission, furnishing ground of defence to an action for the purchase-money, or may support an action on the case for deceit.—Munroe v. Pritchett, 16 Ala. 785 ; S. C. 22 Ala. 501 ; Atwood v. Wright, 29 Ala. 346 ; Blackman v. Johnson, 35 Ala. 252 . This is the proposition stated in the affirmative charge of the Circuit Court. But if on the discovery of the-fraud, the vendee does not rescind, or offer to rescind the contract of purchase, he cannot avoid the payment of the purchase-money in toto—he is entitled to a reduction of it to the extent only of the injury he has sustained. If he-retains the property, he must pay its value.—Barnett v. Stanton, 2 Ala. 181 ; Hogan v. Thorington, 8 Port. 428 ; Marshall v. Wood, 16 Ala. 812 . The error of the instruction is, when construed in connection with the evidence, that it authorized a verdict for the defendants, though there-had been no rescission, and they had retained the animal which the evidence tended to show was of some value.

The charge requested was properly refused. It is doubtless true, as a general rule, that on a sale of an existing thing, which is present and open to the inspection and examination of the purchaser, there is no implied warranty of its fitness for any particular use.—Deming v. Foster, 42 N. H. 174. But if the vendor is informed, the vendee is purchasing the thing for a particular use, and its fitness for that use, is the element of value to the purchaser, a representation by him of its fitness is an implied, if not an express - warranty.—Story on Sales, § 371. The charge also rests the - xesponsibility of the vendor for the truth of his representa- *654 Rons, on his good faith in making them. The principle which runs through our decisions, is the falsity of the rep.-resentation, and the consequent injury to the purchaser who •relies on it, however innocently it may have been made.

Eor the errors pointed out, the judgment must be reversed ...and the cause remanded.