Opinion
(June Term, 1844.)
1. An affirmation at the time of the sale of personal property is a warranty, if it appears from the evidence that the defendant did not mean merely to express an opinion, but to assert positively the soundness of the article sold, and that bidders should, upon the faith of that assertion, bid for the article as sound; otherwise, it is not a warranty.
2. What was the intention is a matter of fact to be left to the jury.
APPEAL from Battle, J., at Spring Term, 1844, of CABARRUS.
Caldwell and Hoke for plaintiff.
Orborne for defendants.
Assumpsit on a parol warranty of soundness in the sale of a negro, of the name of Matthias. The unsoundness of the negro was proved. This negro, together with others, was sold at auction by the defendants as the administrators of their father; and, as alleged by the plaintiff, when each negro was offered by the crier, he was, by the directions of the defendants, offered as a sound negro, until they came to one who was injured in one of his feet, and him they directed to be sold as unsound, which was done. As to the terms or expressions used at the sale, there was conflicting testimony. His Honor instructed the jury (239) that where a vendor of personal property used the word "warrant," or "promise," or any other word or phrase signifying that he undertook that the property was sound, it was, in law, a warranty, and it would be the duty of the court so to instruct the jury; but where the vendor used only words of affirmation that the property was sound, then it was a warranty, or not, according to the circumstances of the case, and that it was a question of fact for the jury to say whether the parties intended a warranty; that if the vendor, in affirming the property to be sound, intended only to express an opinion that it was, leaving it to the purchaser to ascertain as best he might whether the property were sound or not, then it was not a warranty; but if the affirmation were made under such circumstances as to induce those who heard it to suppose that something more than a mere expression of opinion was intended, then it would be a warranty.
The jury found a verdict for the defendants, and the plaintiff's counsel moved for a new trial, for misdirection, insisting that the court ought to have instructed the jury that if they collected the defendants did not mean merely to express an opinion, but to assert positively that the negro was sound, and that bidders should, upon the faith of that assertion, bid for the negroes as sound, then it would amount to a warranty; otherwise, not. The court, believing that the charge was equivalent to that required by the plaintiff's counsel, refused the new trial, and, judgment being rendered for the defendants, the plaintiff appealed.
We agree with his Honor that there is no substantial difference between what it is alleged the judge ought to have told the jury and what in fact he did say to them; and the only question before us (240) is whether in the instructions so given there was error in law. We think there was not. Although the charge was not as precise as it might have been, we believe the law has been substantially stated to the jury correctly.
It is well settled by numerous adjudications that there is no word or set form of words required to constitute a warranty in the sale of personal property; but wherever the words used, taken in connection with the attendant circumstances, show that it was a part of the contract between the parties that there should be a warranty, they will suffice. 4 Ad. E., 473, 31 E. C. L., Pown v. Barkham; 5 B. A., 240, 7 E. C. L., Shepherd v. Kain; 2 Nev. Mann., 446, 28 E. C. L., Freeman v. Baker. These authorities show that every affirmation, made at the time of the sale of personals, is a warranty, provided it appears to have been so intended by the parties. A bare affirmation, merely expressive of the judgment or opinion of the vendor, will not amount to a warranty; and the reason is, a warranty subjects the vendor to all losses arising from its failure, however innocent he may be; and this responsibility the law will not throw upon him by implication, except as to the title of the property.
As it respects the value or soundness of the article sold, the law implies no warranty. The leading case in this State upon the subject of the warranty of personals is Erwin v. Maxwell, 7 N.C. 241. In that case the plaintiff asked the defendant if the horse he was about to let him have was sound, to which the latter answered he was. His Honor, Chief Justice Taylor, in discussing the subject, says: "To make an affirmation at the time of the sale a warranty, it must appear by evidence to be so intended, and not to have been a mere matter of judgment or opinion." In Ayres v. Parks, 10 N.C. 59, the Court says: "An affirmation at the time of the sale is a warranty, provided it appears in evidence to have been so intended. Whether it was so intended is a matter of fact to be left to the jury." The last case on this subject is that of Baum v. Stevens, 24 N.C. 411. In its leading features it strongly resembles this. The case states that the defendant sold at public auction a (241) number of negroes, among whom was Jim, the one whose unsoundness was the subject of the suit; that when the negro next to Jim was offered, the defendant declared that he did not warrant that negro, as he was unsound; that when Jim was offered, he proclaimed, "Here is a young, likely, healthy negro." His Honor who tried the cause below, in the hurry of the trial, laying out of view the attendant circumstances, and looking alone to the words of the defendant, uttered at the moment of offering the negro, held that the words did not amount to a warranty. His Honor, the Chief Justice, in delivering the opinion of this Court, refers to Erwin v. Maxwell, supra, as establishing the true doctrine in cases of warranty. In commenting on the case before him, he proceeds, after stating the facts of the case, to observe: "It might not perhaps be considered as straining the words beyond their obvious and natural sense, taking the whole together, to hold that there was a warranty of the latter negro. But, at the least, it is highly probable that the vendor so meant to be understood"; and closes by observing, "These, we think, were all matters properly belonging to the jury, to whom they should have been submitted, with instructions that if they collected the defendant did not mean merely to express an opinion, but to assert positively that the negro was sound, and that bidders should, upon the faith of that assertion, bid for the negro as sound, then it would amount to a warranty; otherwise, not."
We hold that the charge of his Honor below embraces substantially the principles adjudicated in the above cases. The principle with which the charge closes might have been more clearly expressed, but whatever doubt might rest upon it is removed by what precedes it. In a previous part of the charge the judge informs the jury that when it is a matter of fact for them to decide, before they find there is a warranty, they must be satisfied the parties so intended. It would be unjust to him, and false to the rule of sound construction, to separate the parts (242) of a continuous charge and decide upon isolated portions. With the facts of the case this Court has nothing to do. Any error into which the jury may have fallen was under the sole control of his Honor below. The judgment rendered below must be affirmed.
PER CURIAM. No error.
Cited: Henson v. King, 48 N.C. 420; R. R. v. Reid, 64 N.C. 158; McKinnon v. McIntosh, 98 N.C. 92; Wrenn v. Morgan, 148 N.C. 105; Robertson v. Halton, 156 N.C. 220; Hodges v. Smith, 158 N.C. 260; Tomlinson v. Morgan, 166 N.C. 560.