
    William Allen vs. John Potter.
    On an action of assumpsit to recover the value of articles withheld, and to recover hack money paid for such as were defective, in a purchase made by the plaintiff of the defendant, of a ship and many articles contained in her, it was Held, that the plaintiff ought to have produced the bill of sale as furnishing the highest evidence of the property conveyed by it, and of the covenants contained in it.
    It seems to be the understanding that although a person may maintain an action on an implied warranty of soundness, where there is an express warranty of title only, yet he must produce the deed as evidence of the sale, and to show that there is no express covenant contrary to the implied warranty, on which his action is brought.
    IT appeared in this case that the plaintiff had purchased a ship, tackle, guns, &e. of the defendant. It was alleged by thé plaintiff that some of the articles which he had purchased had not been delivered, and that others were not such as they had been represented. This was an action of assumpsit to recover the value of the articles which had been withheld, and to recover back the money which had been paid for those which were defective in quality. After the evidence was closed on the part of the plaintiff, and the defendant had commenced his defence, it appeared that the defendant had given a bill of sale for the ship and other articles purchased. The defendant’s counsel then called on the plaintiff to produce that bill of sale, and cpntended that as it had been shewn that there was highen evidence in his possession, he ought not to recover on the evidence which had been given to the jury. The presiding judge was of opinion that the objection came too late, and that if the defendant wanted the bill of sale, he should have given the plaintiff notice to produce it. He was not taken by surprize, for he had gi ,'en the bill of sale himself, and. therefore knew of its existence. The objection was overruied, and the plaintiff obtained a verdict.
    This was a motion for a new trial, o.n the ground, that £8 it appeared in evideuce that the contract between the plaintiff and the defendant was reduced to writing, and a bill of saie executed, the plaintiff could not maintain this action without the production of that paper.
   Mr. Justice Noli

delivered the opinion of the court:

This case was tried before myself; and if I had felt at liberty to exercise my own judgment, I should certainly have held that the action could not be maintained. It has been settled' in this court, and I think, correctly settled, that where a person holds a deed, containing express covenants, he cannot maintain an action of assumpsit on an implied covenant of a similar nature. It has also always been my opinion, that where a deed contains certain -express covenants, it excludes the implication of all others. But in the case of Wells fy Spears, fl McCord’s Rep. 421 ,J it was determined by a majority of this court, that an express warranty of title did not exclude an implied warranty of soundness of property. I dissented from that decision. I nevertheless considered it obligatory upon me, and I thought it authorized the plaintiff to maintain the action which he had brought in this caso, and that he was not bound to produce his bill of sale, without notice from the opposite party. My brethren, however, are of opinion that the decision in the case of Wells ¿r Spears, did not authorize the conclusion which I drew from it. — - It seems to be the understanding that although a person may maintain an action'on an implied warranty of soundness, where there is an express warianty of title only, yet he must produce the deed as evidence cf the sale, and 'to show that there is no express covenant contrary to the implied warranty on which his action is brought; anu es I was opposed to the decision itself, I am willing to concur in any construction which shall go to narrow it down as much as possible, as calculated to bring us back more nearly to what I consider to be the common law rule upon the subject. The great object is to lender our decisions uniform and consistent. We have never departed from the rule that parol evidence shall not be at ■■iittui to contradict or explain a deed. We may7 have differed in opinion with regard to the application c it. The case of Adams and Wylie, (1 Nott §• McCord, 78,) has been sometimes adverted to, to show that the court has disregarded that rule of law; but a reference to that case will show that the charge is unfounded. That was an action, on two bonds given for a tract of land ; the defence ’was, a deficiency in the quantity of land sold, and the question was decided upon the construction of the deed. The deed stated, as appears by tbe report of the case, that the tract contained 294 acres of land, besides marsh.” Upon are-survey, there appeared but 202 acres of highland. Including the marsh, the whole number of acres was found, but the court held, that two hundred and ninety-four acres, besides marsh,” must mean two hundred and ninety-four acres of high land. The terms of the contract appeared on the face of the deed, and did not depend upon parol evidence. In the case under consideration, the court are of opinion that the plaintiff ought to have produced the bill of sale as furnishing the highest evidence of the property conveyed by it, and of the covenants contained in it, and that he cannot maintain this action until he shall make it appear that it is not inconsistent with the terms of that deed. The motion therefore is granted.

Toomer 8? Hayne, for the motion.

Jlunt <Sf Clark, contra.

Justices Colcock, Johnson and Richardson, concurred,  