| N.C. | Jun 5, 1824
"Received of David B. Ayres $1,750 in full satisfaction for three negro girls, Sukey, Peggy, and Jane. All the above named negroes are sound, healthy, and clear of disease, and slaves for life, and warranted and defended from all manner of claims whatsoever. Given under my hand and seal this 16 November, 1818." *31
Two grounds of defense were taken below: first, that the bill of sale contained no warranty of soundness; and, secondly, that if the covenant did amount to a warranty, it was obtained by fraud. The unsoundness of Peggy was an extraordinary bleeding at the nose, to which she had long been subject, and of which she died within a year after (60) plaintiff bought her. It was in evidence that the bill of sale was written by the plaintiff, and when presented to the defendant's intestate she refused to sign it unless the bleeding was excepted; the plaintiff refused to receive a conveyance at all, or to purchase the negroes, unless defendant's intestate would sign that deed, at the same time observing that he was buying to sell again, and such an exception in his title would injure the sale; that he intended to carry the slave to the south, and that she would never be called on on account of Peggy's defect. Defendant's intestate thereupon signed the bill of sale, and afterwards assigned as a reason for so doing that the price was a very large one, greater than she could get again, and she did not expect from the distance to which the negroes were to be carried that she would ever be called on to answer for Peggy's unsoundness.
The court instructed the jury that the bill of sale did contain a warranty of soundness, which, if untrue when given, entitled the plaintiff to his action if it were not obtained by fraud.
Verdict for plaintiff, new trial refused, judgment, and appeal. An affirmation at the time of sale is a warranty, provided (61) it appears in evidence to have been so intended. 3 Term, 57. Whether it was so intended is a matter of fact to be left to the jury. In the present case, whether there is a warranty contained in the deed on which this action is brought is a question of law, and, of course, must be decided by the court.
I admit that a bare affirmation is only an inducement to make the contract, but ought not to be considered as part of the contract, and that there is no remedy upon it unless you bring home a scienter to the party making it.
In the case before us, if the words of the deed on which this suit is brought had been regarded in the light of an affirmation, and not as a part of the contract, it is to be presumed that they would not have been inserted in the deed; but as the parties thought proper to insert them in the deed it is a strong circumstance to show that they were so inserted as a part of the contract. *32
If they are considered a part of the contract their meaning is obvious; there can be no doubt about the justice of the verdict. It is stipulated that the slaves are sound, healthy, free from disease, and slaves (62) for life, and warranted and defended from all manner of claims whatsoever.
There is no doubt but what an action would lie upon the latter part of the clause where the titles of the slaves are warranted against all claims whatsoever, and I think there is no doubt but an action would lie upon that part of the clause which asserts that they are slaves for life, because that is a warranty relative to the title. It would seem strange, then, that the same words, when applied to the quality of the property sold, would not, also, amount to a warranty of that.
With respect to the fraud complained of by the defendant, that was laid before the jury; it was their province to consider of it, and not the province of this Court. They have done so, and their verdict, as far as it is founded upon fact, is not under the control of this Court.
Let the quo animo with which the contract was executed, as evidenced by the deed, be what it might, it is immaterial; it is our duty only to say what the contract was, and in doing that I must say that the contract was such as will sustain this action, and that the rule for a new trial must be discharged.
TAYLOR, C. J., and HENDERSON, J., concurred.
Cited: Baum v. Stevens,
(63)