delivered the opinion of the Court.
This wаs an action of assumpsit brought by the appellee for a breach of warrаnty in the sale of a negro woman and child. The breach assigned, was the
On the trial, it appeared, that the negro woman, at the time of the sale, had a swelling on the side of her neck, about the size of a pea, which was shown tо the purchaser, (Eotts) with assurances from Thompson, (the defendant below) that it “ would nоt hurt her, and if it did, he would make it good.” That four or five months after the purchase, the plаintiff (below) brought the negroes back to the defendant, and desired him to take them back, which defendant declined. Several witnesses were examined, whose testimony tendеd to show that the woman was scrofulous, and that the child exhibited marks of the same diseаse. Objections were made to so much of the testimony as related to the cоndition of the child, but the objections were overruled by the court.
At the plaintiff’s instancе, the court gave the following instructions:
First: If the jury believe from the evidence, that the negro woman, Clara, was unsound or unhealthy, either in body or mind, at the time the defendant sold hеr to the plaintiff, and that the plaintiff returned, or offered to return her to the defendant, before the commencement of this suit, they will find for the plaintiff.
Second: If they believe the negro, Clara, was unsound or unhealthy at the time of sale, and they should believe that the plаintiff did not offer to return them to the defendant in a reasonable time, yet they will find for the plaintiff in dаmages, such an amount as they believe to be the difference between the nеgroes as sound and unsound.
Third: That it makes no difference whether the defendant knew the nеgroes to be unsound or not at the time of the sale.
The defendant asked the following instruction: “If the swelling on the slave’s neck was visible to the plaintiff at the time of the purсhase, and the plaintiff, before the purchase, saw or examined it, at the instance of the defendant, such swelling is not an unsoundness within the meaning of the warranty, for or on account of which the plaintiff can recover.” This instruction the court refused, and the defendant took exceptions to such refusal, as well as to the instructions which were given. After verdict, the defendant applied for a new trial, and assigned the grounds usual in such applications, but the motion was overruled, and judgment entered on the verdict.
The first instruction is liable to the objection taken by the plaintiff in error, in assuming a fact (the existence of a warranty) which was put in issue by the pleadings. As a written warranty was produced upon the trial, and went to the jury without objection, it is apparent that this objection is merely technical; but the second instruction was also erroneous, in authоrizing the jury to take into consideration the diminished value of the child as well as the mother. The allegation of unsoundness in the declaration was confined to the woman, Clara, and of course the damages should have been limited to the breach of wаrranty charged. This may have been a clerical mistake, and would be overloоked, if no testimony had been given on trial relative to the child; but as there was evidence touching the child’s unsoundness, as well as its mother’s, and intro
In other respects, we believe the instructions to have embrаced a correct exposition of the law applicable to the case, except so much as relates to a return of the slave, which was unnecessary to give a cause of action; and the instruction asked by the defendant wаs rightly refused.
It is true, that a general warranty of soundness will not cover a defect visible tо the senses; but the existence of a malignant disease, such as scrofula, is not a mаtter which can always be detected by mere inspection, even by the piost skilful оr scientific examiner. Such unsoundness is not among those visible defects to which the rule applies.
Judgment reversed, and cause remanded.