27 Ga. 457 | Ga. | 1859
By the Court.
delivering the opinion.
The questions are: first, was the Court below right, in refusing the requests to charge ? Secondly, was it right, in its charge ?
The requests amounted to this; that, if there existed a breach of the warranty of soundness, made by Nelson to Dukes, the breach was a defence to Dukes, although he might have sold the negro, and transferred his bill of sale, containing the warranty; and this, whether Dukes, in buying from Nelson, did or did not, act as the agent of Weems.
The charge given was, in part, this; that, even if there existed a breach of the warranty, it would be no defence to Dukes, if he had sold the negro, and transferred the bill of sale, made to him, by Nelson, unless he sold the negro, with a warranty of soundness, made by himself; because if he sold the negro, and transferred his warranty, he “waived'” his rights under the warranty, unless he himself made a similar warranty?
First, was this part of the charge right? Is it true, that if Dukes sold the negro, and transferred the warranty made
[l.] An implication that a man has, by his mere conduct, waived a right, he insisting, that he has not, is a strong measure, and not to be resorted to lightly. The case in which such an implication is allowable, must be a case in which, his conduct has been acted on by another person who would suffer, unless the implication were made; and a case, one in which, the conduct was such, that a reasonable man might be excused for acting on it. Now, did any body act on the idea, that Dukes, by selling this negro, and transferring his warranty, and by not making any warranty himself, ivaived his rights under his warranty? Did Giireath do so in purchasing as he did, from Dukes ? Of what benefit could it he to him, that Dukes should waive his rights under his warranty ? It could be of no possible benefit to him. It was possible, and probable, that a transfer of those rights to Giireath, might be of benefit to him, but not, that a waiver of them could. Still more is all this true of Weems, who bought of Giireath. The idea, that Dukes had waived the warranty, was not one that could, possibly, make any part of the inducement to him, to purchase of Giireath.. Indeed, this idea was one calculated, rather to deter both him and Giireath, from purchasing, than, to incite either to purchase. If the warranty was waived by Dukes, it was gone, and they, both, were cut off from all chance of profiting by it; whereas,if it was not waived by him, they might think, that, as they would hold under him, they would be entitled to the benefit of his warranty. Nelson could not have acted upon the idea, that Dukes, by transferring his bill of sale, waived his warranty, for whatever he did, consisted in the sale to Dukes, which, of necessity, must have taken place, before the sale by Dukes. These three persons were all there were of whom, it was possible, to say, that
I would not be understood as meaning to say, that there could not be a case in which, the vendee of personal property, might not be entitled to the benefit of a warranty made
Upon the whole, then, we do not see any ground that, in ■our opinion, was sufficient to justify the part of the charge in question. What the Court should have charged, is, we think, about as follows: That a breach of the warranty, was matter which Dukes had the right to rely on, in his defence, and this, whether, in selling the negro himself, if he did sell the negro, he sold him, with, or without a warranty ; that, if he sold the .negro without a warranty, the measure of his damages, was the difference between what he gave, and what he got, for the negro; that if he was acting merely as the agent of Weems, then the measure of the damage, was the loss sustained by his principal, Weems; and that the note ought to be reduced by a sum equal to what the jury might find the damage to be.
From what has been said, it must be apparent, that we consider the requests as, in the main, proper. It is needless, therefore, to say anything further as to them.
Judgment reversed.