34 S.C.L. 64 | S.C. Ct. App. | 1848
delivered the opinion of the Court.
Ever since the case of Wells v. Spears, and Hughes v. Banks, it has been held that the implied warranty of soundness is not excluded by a written contract of sale, though it be a specialty, and contain a warranty of title. The general rule is that a warranty is not implied against defects which are obvious, or of which the purchaser is notified. But if, by fraud, misrepresentation or deceit, the purchaser is misled, respecting the character, extent or probable consequences of the defect or disease, of which he has notice, a warranty is implied. In the English Courts, because the doctrine of implied warranty is not received, deceit is held equivalent to express warranty, for which assumpsit may be maintained ; and it is not necessary to declare in case for the deceit. As in Wood v. Smith, the defendant, in selling a horse, refused to warrant it, and yet said “ it was sound so far as he knew f
But the Court is of opinion, the plaintiff’s right to recover was not restricted to those counts, and that the verdict may be supported on the implied warranty; on the principle re-cognised in Venning v. Gantt. In that case, the plaintiff had notice, from his unhealthy appearance, of the unsound state of the slave, but the character and commencement of the disorder having been misrepresented to him, it was held
In this case Garvin knew the slave was sick, but he and his wife were put off their guard by the assurances of the defendant, that her disorder was slight, and that she was, at the time, convalescent, having been discharged by the physician. To confirm his assurances, he offered to keep the slave till she recovered; and by protestations of his sincerity in the representation that her ailment was transient, and that they should lose nothing, he put Garvin and his wife off their guard. Their attention and vigilance was diverted from the true character and consequences of the disease; and thus they had no notice of it. In any view of the case, the verdict is supported by the evidence, and the motion is refused,
Motion refused.