
    Willis B. Otts vs. Benjamin A. Alderson.
    In the purchase of personal property, the general rule is that the purchaser buys at his own peril; caveat emptor; unless the seller either give an express •warranty; or the law imply one from the circumstances of the case, or nature of the thing sold; or unless the seller be guilty of a fraudulent representation or concealment in respect to a material inducement to the sale.
    iSfo particular form of words is necessary to the creation of a warranty; any"~\ affirmation or representation in relation to the article sold is sufficient, if it J he intended to have that effect.
    The law implies a warranty, 1. That the seller has title; 2. That the arti-cíes are merchantable where, from their nature or situation at the time of the sale, an examination is impracticable. 3. Upon an executory contract to manufacture an article or to furnish it for a particular use or purpose, that it is reasonably fit and proper for such purpose and use as far as an article of such kind can be. 4. Against all latent defects, 1st, when the seller knew the buyer relied on the judgment of the seller who knew or might have known the existence of the defects ; 2, where a manufacturer or producer undertakes to furnish his articles in answer to an order; 5. That goods sold by sample correspond with the sample in quality.
    0. bought of A. a slave, aud agreed to give for him a full price for a sound slave ; there was no proof of warranty ; the slave at the time had scrofula, and was constitutionally diseased with it; there was no proof that A. knew of the disease, or represented the boy sound. A. sued 0. for the purchase-money : Held, that he was entitled to recover the full amount, though the slave was worthless.
    In error from the circuit court of Adams county; Hon. Stan-hope Posey, judge.
    Benjamin A. Alderson sued William B. Otts in assumpsit on an open account for three hundred dollars, the price of a slave, due on the first of January, 1845. The jury found a verdict for AldersonOtts moved for a new trial, which being refused, he embodied the evidence in a bill of exceptions.
    Abel Alderson testified that since the institution of the suit, he had heard Otts, who was a physician, say that he had bought the slave Enoch of Alderson for $300; at the same time Dr. Otts told him the boy had been sick and caused him a great deal of trouble and he would give him back to the plaintiff if" he would pay him for the money expended in attending him whilst sick ; that Otts, understanding that one William Dunbar would take the boy at that price, agreed to deliver him up to him ; he did not know whether it had ever been done.
    F. L. Claiborne for defendant testified that he knew Enoch in a month after Otts bought him; the boy when he first saw him was sick, and continued so for eighteen months, during which he was of no value, but rather an expense; that the boy had become a great deal better, the last time he saw him, about six months ago, he supposed he was well; Dr. Otts nursed the boy with great care, took him in his own room, and had become attached to him ; the boy was twelve years of age, and if sound, three hundred dollars would be a good price for him; he had heard the plaintiff offer to take the boy back and refund what had been given for him; the defendant refused this unless he would also pay the expenses he had been at by reason of his illness. He had heard defendant say he would not take a thousand dollars for the boy, because he was attached to him, and he was afraid, if he went into the hands of other’s he would not live.
    Dr. Monette, a physician, testified that the boy was constitutionally diseased with scrofula, and must have been so from his infancy; he gave the symptoms and marks of the disease, and the condition of the boy during the illness spoken of by Claiborne ; he did not think the boy of any value; would not give anything for him; that one of the eyes of the boy was still diseased; scrofula was curable in boys before the age of puberty, but it was likely to break out in them in after life at any time on exposure or hard treatment.
    Dr. Juge, who had attended upon the boy, proved similar facts with Dr. Monette and Claiborne, and stated that the boy was well except his eye.
    E. D. Farrar proved that the boy had belonged to his father, from whose estate he had been purchased by Alderson; and that he had always regarded him as a stout, healthy boy; Alderson lived in Louisiana.
    . There was other testimony as to the soundness of the boy, which did not vary the proof; and also evidence of some payments by the defendant; the plaintiff introduced a letter from the defendant written in June, 1844, in which the defendant says, “ Enoch’s belly is not quite as large as when he came from the swamp; he has passed some very large worms, and I do not think he is clear of them yet. If he only had size, I had rather have him than any body’s boy; he has improved a great deal.”
    The plaintiff asked the court to instruct the jury : 1. Unless they believe, from the evidence, that the plaintiff warranted the negro sold to the defendant to be sound at the time of the sale, it is no defence to the recovery of the purchase-money that the negro was unsound.
    2. That the jury cannot presume any fact in the absence of all proof in relation to the subject-matter of such presumption.
    3. That the jury cannot presume, in the absence of all testimony, and that it must be proved to their satisfaction by evidence before they can find the same.
    These instructions were given.
    The defendant asked for these instructions: 1. “If the jury find, from the evidence in the cause, that the defendant agreed to give for the boy a price which would be a full one, had the boy been sound, they have a right to infer, in the absence of proof of any special contract of sale, that the plaintiff represented the boy sold as sound.”
    2. “ The court instruct the jury, if they find, from the evidence in the cause, that the boy Enoch was unsound and of no value, they must find for the defendant.”
    They were refused, and the defendant excepted.
    The defendant then moved the court to instruct the jury, that, if they find from all the evidence in the cause, that the boy Enoch, at the time of the sale, was unsound and of no value, and that the plaintiff had knowledge of his unsoundness, and did not communicate it to the defendant, that such suppression of his knowledge was a fraud, and the law is for the defendant. The court gave the instruction with the qualification, “ that he would give them as an abstract proposition of law, but that they had no application to the case.”
    The defendant again excepted, and prosecutes this writ of error.
    
      Sanders and Haggin, for plaintiff in error,
    Insisted, 1. That under the proof, the full price given for the slave, &e., and under the rules laid down by Story on Sales, 312, 313, there was a breach of the implied warranty in this; 1. The slave was not merchantable, for he was not even of any value, and was not therefore reasonably fit for the use that slaves are purchased for, 2. He was affected with a latent defect, the scrofula.
    
      2. The jury had the right to infer, under the proof, especially from the letter of defendant, that the slave was diseased at the time of sale, and his former master knew it; and the court erred therefore in its qualification of the instruction asked by the defendant. Timrod v. Shoolbridge, 1 Bay’s R. 324.
    Reed, on the same side.
    A warranty will be implied in this case;
    1. Because this boy sold for a sound price; or in other words, for the full value of a sound negro. 1 Nott & McCord, 143; 2 Ibid. 76; 1 Bay, 324 ; 2 Ibid. 380; Hayw. (N. C.) 464.
    2. Because the vendee could not, by inspection, discover the defect in this boy, as the proof shows that the disease under which he was laboring, will remain in the system for a considerable period before it is developed. Story on Sales, 303, 307, 313, 314, 317, and the authorities there cited.
    3. The court below erred in giving the instruction asked for by the appellee, because the evidence shows that there was no bill of sale or particular contract; in the absence then of a distinct eohtract, the law under the evidence will imply a warranty of those defects, at least, that could not, by inspection, be discovered,
   Mr. Justice Clayton

delivered the opinion of the court.

The onty question in this case is, whether a full price paid in. the purchase of a slave implies a warranty of soundness.

On this subject, the general rule is, that the purchaser buys at his own peril, caveat emptor, unless the seller either give an express warranty, or unless the law imply a warranty from the circumstances of the case, or. the nature of the thing sold ; or unless the seller be guilty of a fraudulent representation or concealment in respect to a material inducement to the sale.” Story on Sales, 293.

No particular form of words is necessary to the creation of a warranty — any affirmation or representation in relation to the article sold, is sufficient if it be intended to have that effect. Kinley v. Fitzpatrick, 4 How. 59. There is certainly a tendency in the modern cases to enlarge the responsibility of the seller, and to extend the doctrine of implied warranty. The growing spirit of commerce seems more and more to require, that every vendor of an article should be held answerable for its merchantable quality. Still the general rule is as before stated, and every deviation from it, must be regarded as merely an exception. The exceptions have, by a late writer, been ranged under five distinct classes. 1st. A warranty is implied that a seller has title. 2d. That the articles are merchantable, when from their nature or situation at the time of the sale, an examination is impracticable. This rule is most frequently brought into requisition, where the seller is the manufacturer. 3d. Upon an executory contract to manufacture an article, or to furnish it for a particular use or purpose, a warranty will be implied, that it is reasonably fit and proper for such purpose and use, as far as an article of such kind can be. 4th. A warranty is implied against all latent defects in two cases; 1, where the seller knew the buyer did not rely on his own judgment, but on that of the seller, who knew or might have known the existence of the defects; and 2, where a manufacturer or producer undertakes to furnish articles of his manufacture or produce, in answer to an order. 5th. That goods sold by sample correspond with the sample, in quality.

Another exception to the rule, that a purchaser ordinarily buys at his own risk, is where the vendor has been guilty of fraudulent misrepresentation or concealment. Story on Sales, 293-830. See also Leflore v. Justice, 1 S. & M. 381.

The evidence in this case does not bring the purchaser within the purview of any of the exceptions. He must charge his loss to a presumptuous réliance on his own judgment, and his improvidence in failing to obtain a warranty against defects, to which the property was in its nature liable. The charges of the court propounded the law correctly.

The judgment is affirmed.  