John F. Wallis v. Isaac Frazier.
Where a vendor gives a written warranty of soundness of a negro, which after-wards is found to he unsound, it is immaterial whether the vendee knew of the unsoundness or not; it is a mere matter of contract, and the vendee is entitled to recover the difference between the value of the negro, if sound, and his actual deterioration by the unsoundness.
Where a warranty of the soundness of a negro is given, which afterwards proved to be injured from twenty-five to thirty per cent, by disease, and the jury give mere nominal damages, a new trial will be awarded,
This was an action of assumpsit, tried at Columbia, Spring Term, 1820, on an express written warranty of the soundness of a negro.
The plaintiff proved the sale, the warranty, and the unsoundness.
The defendant then offered testimony to prove that the plaintiff was apprised of the unsoundness when he purchased ; that testimony was objected to by the plaintiff’s counsel, but was admitted by the Court. It then appeared by the evidence, that the negro had a *sore on his leg, which was represented «.,» to be of recent origin, and from its external appearance, was not calcu- *• 0 *684lated to induce a belief, that it would essentially impair his value. The plaintiff however, being suspicious of it, required the warranty which was entered into. It also appeared afterwards, that the negro had been, for some time previous to the sale, under the hands of a doctor who pronounced it to be a white swelling, and that it would probably be incurable, and that it lessened his value from twenty-five to thirty per cent. It was proved that he continued in the same situation up to the time of the trial.
The jury found a verdict of one cent for the plaintiff, and this was a motion for a new trial, on two grounds;
1. Because the presiding judge permitted improper evidence to be given to the jury.
2. Because the verdict was contrary to evidence.
Nott and M‘ Cord, for the motion. Starlc, contra.
The opinion of the Court was delivered by
Nora, J.
The view which the Court has taken of the second ground made in this case, renders it unnecessary to decide the first, aud the diversity of opinions prevailing- in the Court respecting it, renders it inexpedient that I should express my own.
Both parties were aware of the unsoundness at the time of the contract, but both perhaps ignorant of the extent of the injury. Hence the cause and the necessity of the warranty to indemnify the purchaser against the possible and even probable result, that it might become, as it actually has, permanent and incurable. It was a matter of contract on the part of the defendant, and whether the plaintiff knew of the unsoundness or not, was immaterial; the defendant is bound to perform his contract. If it had been an implied warranty, arising from the soundness of price, it would have been rebutted by the plaintiff’s knowledge of the fact, or if it had been the object of sense alone, as the total loss of a leg or an eye, &c., it would not *have been embraced in a general warranty; but being a case in which great skill and judgment were required to be exercised, it must be considered as coming within the warranty, unless a special exception had been made. Being a plain matter of contract, the terms of which were stipulated by the parties themselves, the difference between the value of the negro, if sound, and his value in the situation which he was, became the rule by which the damages ought to have been estimated. The testimony on the point was clear and uncon-tradicted, and the jury were not authorized to disregard it, and adopt an arbitrary rule of their own, unsupported by any testimony. The verdict was clearly against evidence, and a new trial must be granted.
CoiiCOOK, -RichARDson, and HugeR, JJ., concurred.
*685See 6 Rich. 169.