Hughes v. Banks ex rel. Banks

12 S.C.L. 537 | S.C. | 1822

Mr. Justice Colcock

delivered tbe opinion of the court.

The court has repeatedly decided the first and second grou'nds taken in this case. An express warranty of property does not exclude a responsibility on the implied warranty of soundness. (Tunno vs. Fludd, and a number of other antecedent cases.)

■In an action of special as.sumpsit, to recover back the price paid for any property which proves unsound, there is no necessity to prove a return of the property, or any recision of the contract. If general indebitatus assump-sit be the action, it is then necessary as in the case of Fowler & Williams.

The third ground cannot avail the defendant; for it is competent for ajudge to express an opinion on the facts of any case ; and in the present instance the case did not in any wise depend on the fact on which the presiding judge expressed his opinion.

The.fourth ground assumes a fact as proved, which was one of the facts submitted to the jury, and is negatived by their verdict.

On tbe fifth and last' ground, I can only repeat the lan - guage which has been so often reiterated by this court; that where there is evidence on both sides, the court will not interfere with the verdict, and here, independent of the evidence of Ur. Hammond, there were circumstances which proved conclusively, the unsoundness of the woman.

McDuffie,-for the motion. JSfoblc, contra.

The motion is therefore refused.

Justices Noll, Richardson, Hager, Gantt and Johnson, concurred.