12 S.C.L. 421 | S.C. | 1821
delivered the opinion of iim court.
Whether the negro wench was diseased at the tune of sale or not, was a fact for the jury to determine, and, the’ questionable, the court cannot perceive that the verdict is against the evidence, in that particular. It is unnecessary to detail the testimony. But a question of another kind and of some difficulty, is presented, to wit, whether, wbero an express warranty of the title to a chattel is made, there: can be an implied warranty of its soundness ; and many authorities have been adduced to shew, that where there has been one warranty expressed, other warranties are excluded. (Bac. Warr. Phillips 422. 2 Day 23. 4 Dallas 440. Peake 15.) As a general rule, this position is just, but where we consider, how repeatedly it lias been adjudged in this state, that wherever a chattel is sold for a full price, such sale per se, implies a warranty of the physical soundness of the chattel, and bow many recoveries by-reason of tbe unsoundness of chattels sold, have been predicated upon bills of sale with only the usual express warranty “ against all persons claiming, &c.” as in the case before us, it would be inconvenient, and would probably be a misconstruction of tbe real intention of parties to such bills of sale, were we at this day to decide, tliat the express warranty of title excludes the implied warranty of soundness. The express warranty can be no more than presumptive proof of the exclusion of all other warranties : and this may be well counteracted by opposite pvesump-\forts, arising from general practice, and the course of ad
It is to be observed too, that there are not wanting instances, where express warranties do not take away warranties in law, or implied warranties, as in Noke's case, (4 Repts. 81.) As, if a man leaseth for life and farther bindeth himself and his heirs to warranty, here the express warranty doth not take away the warranty in law; for, if he in reversion granteth over his reversion, and the lessee attorneth, and afterwards is impleaded, he may vouch the grantee by the warranty in law, or he may vouch the lessor by the express warranty. (See 1st Inst. 384.) Buttho’ a majority of the court are of opinion that the express warranty does not in this instance exclude the implied warranty, and would not disturb the verdict, because it jnav be doubtful whether the wench was sound or unsound