
    
      Isaac A. Wood, adm’r. v. Richard C. Ashe.
    
    An implied warranty of soundness is not excluded by a written contract of sale, though it be a specialty and contain a warranty of title. — Yide Wells v. Spears, 1 McCord, 421, and Hughes v. Banks, 1 McCord, 537.
    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 an action of assumpsit, the plaintiff may recover on an express and also on an implied warranty, when there has been fraud in the contract. The circumstances of fraud must be stated with a scienter; and a count on the deceit should be joined with the counts on the warranty.
    
      Before Frost, J. at Barnwell, Spring Term, 1848.
    This was a new trial case. The declaration originally contained two counts in assumpsit on a contract of warranty. Pursuant to leave, granted by the decision of the Appeal Court, the plaintiff added three counts. The first of these counts was plainly in special assumpsit; and the third contained the common money counts. The second set out that the defendant falsely and deceitfully represented to the intestate, that the slaves, the subject of sale, were sound; and imposed on the intestate, when intoxicated, a contract to pay twelve hundred dollars for Delia and her two children which sum the intestate did pay to the defendant; and in consider- ¶ ation of the premises, the defendant promised and assumed to the intestate that the said negroes were sound; and then assigned a breach of the undertaking. The defendant demurred specially to the declaration for misjoinder of counts in assumpsit and case; averring that the first and second of the new counts were in case. The demurrer was overruled.
    The defendant’s bill of sale to Garvin for Delia and her two children was produced, dated the 2d January, 1840, for the consideration of $1,200.
    Evidence of the defendant’s promises and representations, at the time of making the contract and before, was objected to; but admitted to maintain the charge of fraud in the fourth count of the declaration.
    It was proved that the wives of Garvin and of Hix, sisters of the defendant, acquired from their deceased father a tract of land. It was put up at public sale, when Garvin and the defendant were present; but not sold. Defendant made a private contract with Hix for the purchase of his wife’s moiety for $1,200. Defendant, at the same time, offered to purchase from Garvin, his wife’s share. Garvin was intemperate, and, when in liquor, was easily persuaded to do any thing. He and the defendant had not, for some time previous, been on good terms. Garvin and his wife were invited by the defendant to spend the day with him; and the trade was made the day they went. Garvin went about 10 o’clock. Liquor was put out, and he continued drinking through the day, while he and defendant were talking about the trade. It was not certain that defendant did inform Garvin, that Delia was sick. .When her sickness was adverted to, defendant said she had been sick, but was well, having been discharged by the physician. Garvin and his wife went to see the woman. They found her confined to her house and complaining. The evidence was contradictory respecting the soberness of Gar-vin at this time, and his capacity to judge of Delia’s ailments. On their return to the house, a conversation between Garvin and the defendant was over-heard, in which defendant said to Garvin, “ you shall lose nothing by it.” Defendant after-wards denied having said so. After a short time, he admitted to the witness that he had said so; but said he referred to another transaction. The witness was not satisfied with the explanation. After dinner, Garvin proposed to Cohen to take the negroes in payment of land which he, (G.) had bought from Cohen. I lohen replied, he did not want negroes, at any rate, not sick negroes. On this, Garvin renewed to defendant the objection that the negroes were unsound. Defendant said “ Garvin, did you ever lose anything by me?” Garvin replied “ No,” and added, “ I will trade.” Cohen advised Garvin not to trade for the negroes; but if he would, not to do so that day. This advice was given, because Garvin was not in a situation to make a bargain. Defendant offered to keep the negroes, and said if Delia died, Garvin should lose nothing by it. — The bill of sale was executed late in the afternoon, when Garvin was intoxicated. The negroes remained in the possession of defendant until Delia died — about three weeks after the sale. Speakig of her illness, the defendant said to a witness, if she died, he supposed he would have to make it good. The conveyance of the land, in payment of the slaves, was made the 16th January, and the renunciation of inheritance was dated the 22d January; though Garvin’s widow testified it was executed eight days after the deed. Delia was 40 to 45 years old; one child, eight years and the other sixteen months at the time of the trade. Several witnesses thought, if the whole were appraised at $1,200, the price of Delia should be set down at' half. Only one witness, the brother of defendant, spoke pf the value of the negroes severally, and he thought Delia worth $300; the elder child $400; and the younger $250. Mr. Cohen said, if Delia were a likely woman, the family, in 1840, might have been worth $1,200; it being his impression, that ne-groes then sold high.
    The jury were instructed that the plaintiff could recover only on the fourth count in the declaration; that the bill of sale prevented a recovery on the evidence of ah express parol warranty; and Garvin’s knowledge of Delia’s illness prevented a recovery on an implied warranty. But that if the plaintiff had established fraud in the contract of sale, that would annul the contract; and would make void the deed by which the contract was executed; and that the plaintiff might, in that case, recover on an express or implied agreement of the defendant to warrant the soundness of the negroes. On the question of fraud, the evidence was fully brought to their view ; and especially the execution of the conveyance and release of inheritance, in a manner of which it was not supposed the defendant could complain. They were told, if the fraud was established to their satisfaction, to find for the plaintiff the value of Delia, with interest from the day of sale. They found for the plaintiff $900.
    The defendant moved to reverse the decision of his Honor on the question made by the special demurrer.
    
    And also for a new trial, on the following grounds, viz:
    1st. Because his Honor admitted parol evidence, contrary to the principles of law laid down by the Appeal Court in this case.
    2d. Because the 4th count, (on which alone the plaintiff could recover, if at all,) is not supported, but is contradicted by the proof.
    
    
      3d. Because his Honor charged the jury, that if they believed the defendant was guilty of a fraud, they should find s for the plaintiff. Whereas, it is respectfully submitted that the jury should have been confined to the charge of fraud, as set forth in the fourth count, which was not sustained by the evidence.
    4. Because his Honor (it is respectfully submitted,) should have instructed the jury that the execution of the bill of sale (without warranty,) and the execution of the deed for the land fourteen days after the trade, and the relinquishment of inheritance twenty days after the trade, were sufficient facts to rebut the presumption of fraud arising from the plaintiff’s proof.
    6. Because the verdict was contrary to evidence.
    6th. Because the verdict was contrary to law.
    
      Copy of the Declaration.
    
    South Carolina, ^ to wit : Barnwell Dist. $
    1st. Richard C. Ashe was attached to answer to Isaac A* Wood, administrator of all and singular the goods and chattels, rights and credits that were of Edward K. Garvin, deceased, who departed this life intestate, in a plea of trespass on the case, and so forth, and whereupon the said Isaac, by Owens, his attorney, complains for that whereas heretofore, to wit, on the second day of January, in the year of our Lord one thousand eight hundred and forty, (and in the life time of the said Edward K.,) at Barnwell, in the district and State aforesaid, in consideration that the said Edward would, at the special instance and request of the said Richard, buy of the said Richard three certain negro slaves, to wit, Delia ahd her two children, Susannah and Hannah, at and for a large price or sum of money, to wit, the price or sum of twelve hundred dollars, to be paid by the said Edward to him the said Richard, for the same, he, the said Richard, upon himself did assume, and to the said Edward then and. there faithfully promised, that the said negro slaves were sound; and the said. Isaac, as administrator, in fact says that his intestate, the said Edward, confiding in the promise and assumption of the said Richard so by him made as aforesaid, afterwards, to wit: on the day, in the year, and at the place aforesaid, the said Edward, at the special instance and request of the said Richard, did buy of the said Richard the said negro slaves, at and for the said price or sum of twelve hundred dollars, and then and there paid the said sum of money for the samé. Yet the said Richard, not regarding his promises and assumptions so by him made as aforesaid, but contriving and fraudulently intending to injure the said Edward in this behalf, did not regard his promise and assumption so by him made as aforesaid, but craftily and subtlely deceived- said Edward in this, that the said negro slave Delia, at the time of the making of , the said promise and assumption of the said Richard, was not sound, but, on the contrary thereof, was unsound — that is to say, diseased of and laboring under a fever, whereby the said slave Delia then and there became and was of no value to the said Edward and the said Edward was then and there put to great charges and expense in and about doctoring and nursing the said slave; and of which said disease the said slave afterwards, on the day of , in the year aforesaid, and in the life time of the said Edward, died.
    2d. And whereas also afterwards, to wit, on the day, in the year, and at the place first aforesaid, in consideration that the said Edward, at the like special instance and request of the said Richard, would buy of him, the said Richard, three certain negro slaves, to wit, Delia and her two children, Susan-nah and Hannah, at and for a certain price or sum of money, to wit, the price of twelve hundred dollars, to be paid by him the said Edward, he, the said Richard, upon himself assumed and to the said Edward then and there faithfully promised that the said last mentioned slaves were sound ; and the said Isaac, administrator as aforesaid, avers that the said Edward, confiding in the last mentioned promise and assumption of the said Richard, did afterwards, to wit, on the second day of January, in the year of our Lord one thousand eight hundred and forty, at Barnwell, aforesaid, buy the said last mentioned slaves of the said Richard, and then and there paid him for the same the said sum of twelve hundred dollars. Nevertheless the said Richard, contriving and fraudulently intending to injure the said Edward, did not perform or regard his said last mentioned promise and assumption so by him made as aforesaid, but craftily and subtlely deceived and defrauded the said Edward in this, to wit, that the said slave Delia, at the time of the making of the said last mentioned promise and assumption by the said Richard, was not sound, but on the contrary thereof, was at that time unsound, whereby the said last mentioned slave was of no use or value to the said Edward, and became and was of no use or value to him, and he, the said Edward, was then and there put to great charges and expense in and about doctoring the said slave, and of which unsoundness the said last mentioned slave, Delia, afterwards, to wit, on the day of , in the year aforesaid, and in the life time of the said Edward, died at Barnwell aforesaid, to the damage of the said Isaac as administrator aforesaid, two thousand dollars, and therefore he brings suit, and so forth. And the said Isaac produces here in Court his letters of administration in the form aforesaid, the date whereof is the day of March, in the year of our Lord one thousand eight hundred and forty-five.
    3d. And the said Isaac A. Wood, administrator, as aforesaid, by his attorney aforesaid, further complains for that whereas also, the said Edward Garvin, afterwards, in his life time, to wit: on the second day of January, in the year our Lord one thousand eight hundred and forty, at the place aforesaid, at the special instance and request of the said Richard 0., bargained with the said Richard to buy from him, the said Richard, three other negro slaves of him, the said Richard, to wit: the said slaves, Delia and her two children, Susannah and Hannah, at and for a certain sum of money, to wit: the sum of twelve hundred dollars, to be therefor paid by the said Edward to the said Richard. And the said slave, Delia, being, at the time of said bargain and sale, unsound and diseased, the said Richard then and there faithfully promised to the said Edward, that if he, the said Edward, would then and there buy of him, the said Richard, the said slave, Delia, and her children, that in consideration thereof, of the price or sum of money to be paid for the said slaves, by the said Edward to the said Richard, he, the said Richard, would well and truly warrant and defend the said Edward against the effects and danger of the said disease and unsoundness of the said slave, Delia. And the said Edward, confiding and trusting in the promise of the said Richard, agreed and bargained with the said Richard, that if he, the said Richard, would well and truly perform his promises aforesaid, and keep the said slave, Delia, in the possession of him, the said Richard, until she, the said slave, Delia, had recovered entirely from the aforesaid disease and unsoundness, that he, the said Edward, would well and truly pay him, the said Richard, the said sum of twelve hundred dollars. And the said Edward confiding as aforesaid in the promises and assurances of the said Richard, afterwards, to wit: in the life time of the said Edward, to wit: on the day, and in the year, and at the place aforesaid, paid to the said Richard the said last mentioned sum of twelve hundred dollars. And the said Edward, after the bargain and sale aforesaid, in accordance with the aforesaid agreement of the said Richard, placed and permitted the said slave, Delia, to remain in the possession of the said Richard, and the said slave, Delia, having become more diseased and unsound, and the said Edward seeing the said slave, Delia, was of no value from the effects of the disease aforesaid, requested the said Richard to give and secure him, the said Edward, in the warranty and defence of the said disease, as he, the said Richard, had promised as aforesaid. But the said Richard, his promise, in form aforesaid made, in no wise regarding, but contriving to deceive and defraud the said Edward, in his life time, utterly refused to warrant and defend the said Edward against the disease and unsoundness aforesaid of the said slave, Delia; and the said slave, Delia, on the day of , in the year aforesaid, from the disease and unsoundness aforesaid, died. By means where- ; of, the said Edward, in his life time, afterwards, to wit: on the day, in the year, and at the place aforesaid, sustained damage to a large amount, to wit: to the amount of two thousand dollars. And the said Isaac, administrator as aforesaid, avers that afterwards, in the life time of the said Edward, to wit: on the day, and in the year, and at the place aforesaid, he, the said Richard, in consideration of the premises, then and there undertook, and faithfully promised the said Edward to pay to him the amount of damage by him, the said Edward, so sustained as aforesaid, to wit: the said sum of two thousand dollars, when he, the said Richard, should be thereunto afterwards requested.
    4th. And the said Isaac A. Wood, administrator as aforesaid, by his attorney aforesaid, further complains for that whereas also, the said Edward K. Garvin afterwards, in his life time, to wit: on the second day of January, 1840, at the place aforesaid, at the special instance and request of the said Richard C. Ashe, bargained with the said Richard to buy from him, the said Richard, three other negro slaves, to wit: the slaves Delia and her children, Susannah and Hannah, at and for a certain sum of money, to wit: the sum of twelve hundred dollars, to be therefor paid by the said Edward to the said Richard. And the said Edward being then and there in a state of intoxication, from the use of ardent spirits, and being bereft of his power of judgment and natural discrimination, and the said Richard, though well knowing the said last mentioned Delia to be unsound and worthless, by then and there falsely and fraudulently representing and warranting the said last mentioned slaves to be sound, then and there induced the said Edward to buy, and then and there sold to him the said last mentioned slaves, for the said sum of twelve hundred dollars, to be paid by the said Edward to the said Richard ; and the said Edward, confiding in and deceived and beguiled by the said last mentioned warranty of the said Richard, afterwards, in the life time of the said Edward, to wit: on the day, in the year, and at the place last aforesaid, paid the said last mentioned sum of twelve hundred dollars, to the said Richard, whereas, in fact, the said slave, Delia, last mentioned, at the time of the making of the said warranty and sale of the said slaves last mentioned, was not sound, but on the contrary thereof was then and there unsound and of no value, and in con sequence of such, she, the slave, Delia, last mentioned, afterwards, to wit: on the day of , in the year aforesaid, at the place aforesaid, died; by means whereof the said Edward, in his life time, afterwards, to wit: on the day, in the year and at the place aforesaid, sustained damage to a large amount, to wit: to the amount of two thousand dollars. And the said Isaac, administrator as aforesaid, avers that afterwards, in the life time of the said Edward, to wit: v on the day, in the year, and at the place aforesaid, he, the said Richard, in consideration of the premises, then and there undertook, and faithfully promised the said Edward to pay to him the amount of damage by him, the said Edward, so sustained as aforesaid, to wit: the said sum of two thousand dollars, when he, the said Richard, should be thereunto af-terwards requested.
    1 McC. 421. 1 McC. 537.
    1 Car. & P. 45.
    ,5th. And whereas also, the said defendant afterwards, to wit: on the day, in the year, and at the place aforesaid, was indebted to the said Edward, in his life time, in the further sum of twelve hundred dollars, for so much money, by the said Richard, before that time, had and received to and for the use of the said Edward, and at his special instance and request, and being so indebted, he, the said defendant, in consideration thereof, afterwards, to wit: on the day, in the year, and at the place last aforesaid, undertook and then and there faithfully promised the said Edward, in his life time, the said last mentioned sum of money, when he, the said defendant, should be thereunto afterwards requested.
    Yet the said Richard, not regarding his promises and undertaking, did not pay the several sums of money demanded in the three counts last mentioned, or any of them, or any part thereof, to the said Edward, in his life time, though often requested; nor hath he, the said Richard, since the death' of the said Edward, paid the same, or any part thereof, to the plaintiff, administrator as aforesaid, but so to do, hath hitherto wholly neglected and refused, wherefore the said plaintiff saith he is injured and hath sustained damages to the amount of two thousand dollars, and therefore he brings suit, and so forth,
    OWENS, Plaintiff’s Attorney.
    
   Fbost, J.

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 it was held he was liable in assumpsit, as upon a qualified warranty, on proof negativing the soundness, and shewing the defendant knew the horse was unsound. But assumpsit is not admitted to be the proper remedy, in the case of a deceitful representation, not embodied in a written contract between the parties ; because it would amount to the admission . of parol evidence, to contradict a written contract. This objection does not apply in our law, because the implied warranty is, itself, an exception to the rule which excludes evidence of any terms or stipulations, not expressed in the written contract. The implied warranty subsists along with the written contract. The one is the act of the parties, the other is created by law, and is independent of any agreement. If the parties make a special contract of warranty, that the law executes, according to its terms and conditions; and parol evidence will not be received to contradict or vary it. If they stipulate against any warranty, the law does not impose an implied contract against their consent. But if the agreement contain no stipulation on the subject, then the law superadds the condition, that if a sound price be paid or contracted for, and the property be not sound, the purchaser shall not be held to the contract. Since the implied contract may subsist when there is a written contract, as when there is none, in either case the same evidence must be admissible. In Reid v. Duncan, Judge Nott left the question open, whether in case of deceit, in the sale of a slave, by deed, the action should be case or assumpsit; but, in either case, he held the fraud or deceit, being the ground of plaintiff’s right to recover, and the defendant’s knowledge of the facts relied on, must be alleged and proved. Brevard’s reports were not then published, and the learned Judge was not aware of the case of Houston v. Gilbert. That was assumpsit,' founded on deceit in the sale of a slave, by deed, warranting the title. Judge Brevard, delivering the judgment of the Court, says: “It is now settled law, though I know not how or when it was introduced, that, in an action of assumpsit, the plaintiff may recover on an express and also on an implied warranty, when there has been fraud in the contract. The circumstances of fraud must be stated with a scienter.” He suggests that it would be always advisable to join a count on the deceit, with counts on the warranty. The demurrer to the counts, founded on deceit, was properly overruled.

Meyer v. Ev-erth, 4 Camp. Powell v. Ed-munds, 12 Ea. 11.

2 McC. 167.

3 Brev. 64.

Cheves, 87.

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 he might recover on the implied warranty, on the ground that he had no notice of the disease from which the slave was suffering and afterwards died.

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,

Richardson, J. O’Neall, J. and Evans, J. concurred.

Motion refused.  