
    
      B. A. Rodrigues ads. R. W. Habersham.
    1. The rule that the implied warranty of soundness arises, notwithstanding there is an express warranty of title as laid down in Wells vs. Spears, 1 McC., 421, arises only in those cases where the express contract is silent, for if there be any stipulation in the written contract in x-elation to the soundness or quality of the thing sold, the law will imply nothing beyond what the parties have contracted. McLaughlin vs. Horton, 1 Hill, 383.
    2. If the seller expressly refuse to warrant, there can be no pretence for raising the implied waxranty, but what amounts to a refusal to warrant, must, in general, be submitted to a juiy.
    3. Where, on the sale of a negro, the vendor executed a bill of sale, warranting the title, but refused to insert a clause of warranty as to soundness, saying, “ that he never required it when he bought, and wouldnotinsertit when he sold” — “ that the price was a good one, and sufficient evidence that he thought the negro sound.” The jury having returned a verdict for the plaintiff, the court refused to disturb it.
    
      Before Butler, J., Charleston, January Term, 1842.
    This was an action of assumpsit, for the breach of an implied warranty, in the sale of a female slave, Hannah. The sale was made on the 23d day of December, 1840, under the following circumstances : Mr. T. M. Hume, acting as the agent of defendant, advertised the negro for sale. The plaintiff made application to buy, and after some negotiation, during which the parties themselves had several interviews, the contract was concluded; the plaintiff paying down, in cash, $550, the full value of the negro. The defendant executed a bill of sale, warranting title. The plaintiff asked a warranty of soundness also, to be inserted, which the defendant refused to do, saying, “ that he never required it when he bought, and would not insert it when he sold; that the price was a good one, and sufficient evidence that he thought the negro sound. That he knew of no disease in the negro, except that occasionally she had slight rheumatism in her arm and shoulder, but that in other respects he believed her entirely sound.” Hannah was represented as a house servant, and a good washer and ironer, and the only reason the defendant gave for selling her was, that he had too many in his yard, having bought a younger woman some time before from Mr. Ash, through the agency of Mr. Hume. The plaintiff residing in the upper part of Georgia, took Hannah home, and kept her in his own immediate employment till February, 1841, when he hired her to a Mr. Wiley, for six months. Wiley returned her at the end of two months, which was some time in April, saying the negro was too sickly for his purpose, she having complained and been laid up with pains in her arm and shoulder. The plaintiff put her to dropping corn on a small farm which he cultivated, about ten acres. After being on the farm three weeks, she returned in very bad health, with symptoms of disease that excited the alarm of plaintiff. About the 1st of June, he subjected her to the examination of two Doctors, whose evidence was taken by commission. Drs. Phillips and Matthews were the physicians; they said Hannah was seriously diseased in the ovaría and uterus, having schirrous tumors in these parts of the size of the double fists. These tumors had greatly enlarged the ovaria, and had extended to the uterus. They gave it as their opinion, that the disease was chronic, and of long standing — originating in slow subacute inflammation, and being of a cancerous kind, was incurable. They also said it must have existed more than a year.— Shortly after this, plaintiff wrote to defendant that Hannah was unsound, and he must return her. The defendant replied, and said he wished to see the negro, and he would do what was right. Hannah was brought to Charleston in July, when several physicians examined her, all of whom concurred that she was then unsound. Doctors Ogier and Prioleau made a minute examination, internally, and said the tumors were of a schirrous kind, and incurable, and that they must have had their origin for more than a year past. They described the nature and symptoms of the disease fully, in technical language, which they explained so as to make themselves intelligible to the jury. Dr. Geddings said he was called in at the instance of defendant to examine the negro, which he did, by applying his hand externally to the lower part of the abdomen. He was satisfied the woman was unsound, but he could not venture to say what was the nature of the tumors or enlargement; nor would hi in this, or any other case, undertake to say how long the disease had existed. He thought it was not practicable to do so without pathological dissection. Dr. Elfe said the same thing in effect, but added, that he knew of a case where a negro had been examined, and insured as sound at the insurance office, and that in three months after she died of schirrous tumors on the ovaría. Dr. Frost, who was examined on the part of the defendant, said he had attended Hannah twice while defendant owned her; once in September, 1839, when she had fever; and again in November, 1840, when she had diarrhoea. On the latter occasion he' treated her case as diarrhoea; the woman complaining of nothing else at the time, and left her convalescent of that disorder in the early part of November. This witness gave it as his confident opinion, that, at that time, the woman had no disorder of the ovaria and uterus. He examined her after her return, and thought her then unsound with tumors, &c.; thought they might, and did, probably have their origin from working in the field, and that such tumors frequently originate in acuite inflammation, &c., a great deal depending on the constitution of the patient, and the nature of employment to which she may have been subjected.
    Hannah was re-sold at the risk of the former owner, and brought $103. Her purchaser at the last sale says that he hires her out at $6 a month, and that she is capable of doing tolerable labor.
    The presiding Judge charged the jury in substance as follows: That an express warranty of title, was not, of itself, an exclusion of the implied warranty of soundness arising from a full price. But His Honor said, that if the purchaser took the negro with an understanding that the implied warranty of soundness was excluded by the vendor, he should abide by the doctrine of caveat emptor. That the stipulations of the parties would be conclusive on both. The fact that the defendant refused to insert in. the bill of sale a warranty of soundness, was strong evidence that he did not undertake at all to subject himself to liability on an implied warranty. His Honor thought, however, that his assertion that Hannah was, in all respects, sound, except as to some slight rheumatic affection of the arm, was calculated to put the plaintiff off his guard, as it was certíiin the plaintiff purchased on that assurance. It was not alleged in the action, or in argument, that defendant knew of the unsoundness of which the negro was afflicted ; but it was contended that the representations made by him were well calculated to deceive the plaintiff, and that, in fact, he was deceived by them. A bill of sale to defendant from a former owner, was given in evidence, which contained an express warranty of soundness.
    After explaining the law, as required by defendant’s counsel, the court left it to the jury to decide, on the evidence, whether the negro was unsound at the time of sale or not, that if they believed the affirmative, they should find for the plaintiff; if not, they should find for the defendant. They returned a verdict for the plaintiff of dollars, which was, in fact, a compromise verdict.
    The defendant appealed and moved for a new trial, on the following grounds:
    1. It is respectfully submitted, that His Honor, the presiding Judge, erred in charging the jury, that a warranty of title alone, in a bill of sale of a slave, under seal, wherein was no warranty of soundness, did not exclude an implied warranty of soundness.
    2. Because the verdict of th'e jury was against the plain, uncontradicted evidence, that defendant bad refused to warrant the soundness of the slave.
    3. Because the verdict of the jury was, in other respects, against law and evidence.
    Frost, for the motion,
    contended that the highest evidence of a refusal to warrant, was the written contract. — - No evidence should have been received to vary it, nor of the preliminary conversation which led to the contract. — • Wells vs. Spears, 1 McCord, 421, and Smith vs. The Bank, Riley’s Ch. Cases, 113, cited and compared; also, Chitty on Contracts, 360; Harper’s Law Rep., 542, (Riley’s edit.;) Cheves, 91; 1 Treadway, 236.
    Northrop, contra.
    The first ground is untenable, as the contrary has been repeatedly settled by our courts, and is now the well established, and generally received law of the land. 1 Bay, 319; 2 Nott & McCord, 76 ; 1 McCord, 421, 537.
    The vendor did not refuse to give an express warranty, but only to insert a written warranty in the bill of sale ; the action, therefore, was brought on the express warranty given by the vendor; for his refusal was particular, and was equivalent to his express adoption of the implied warranty at law. He referred to the general rule of the law of sales, and assumed it as a part of his contract.
    In 1 Tread. Con. Rep., 236, in Young ads. Plumeau, Harp. L. Rep,, 543, Riley’s edition ; Slyke vs. Greenway and Goree, Mss. Dec. 3 vol. 106; Smith vs. The Bank of the State of South Carolina, Riley’s Ch. Cases, 113, and Hart vs. Edwards, 2 Bailey, 306, tliere was an express stipulation not to warrant.
    In the present case, there was an express stipulation that the implied warranty at law, was binding on the vendor, and that as the sound price, required to fix the liability of the seller had been given for the negro, that there was no necessity to insert a covenant which would bind him no further.
    The jury have decided on the facts, and there was no error in the Judge’s charge.
   Curia, per

Evans, J.

By the common law, if the purchaser of a chattel paid a full price, the seller was understood to warrant the title ; but this implied warranty did not extend to the quality or goodness of the article sold.. But at a very early period of our judicial history we adopted a different rule, and held that where a fair price was paid, the law implied a promise by the seller, that the article sold was sound ; that is, that it was what its external appearance indicated it to be. This, of course, did not extend to known and visible defects. This rule was adopted from the civil law, and was considered an anomaly in those States where the common law prevails. But recently, the English courts seem inclined to depart from the strictness of their ancient rule, and have held that on the sale of manufactured goods, a warranty was implied from the custom of trade, that the goods were merchantable or fit for the purposes intended, 4 Taun., 847; so, also, if an article was sold for a particular purpose, the law implied a warranty that it was reasonably fit for the purpose, 4 Barn. & Cres., 108, and in New York and some other States, a disposition is manifested to adopt a similar rule. In the case of Spears vs. Wells, 1 McCord, 421, we have engrafted into our law -another principle in relation to implied warranties, viz: that the implied warranty arises, notwithstanding there is an express warranty of title. The general rule of evidence is, that where the parties put their contract in writing, that is the only evidence of what they intended, and everything else is excluded. “ It would be inconvenient, says Lord Coke, that matters in writing, made by advice and on consideration, and which, finally, import the certain agreement of the parties, should be controlled by the uncertain testimony of slippery memory.” Whether the rule in Spears vs. Wells, be wise or not, is not now an open question, and we have no inclination to depart from it. It has certainly opened a door to much litigation, and this should admonish us not to extend it. The rule as laid down, can arise in those cases only, where the express contract is silent. If there be any stipulation in the written contract in relation to the soundness or quality of the thing sold, the law will imply nothing beyond what the parties have contracted, as in the case of McLauchlin vs. Horton, 1 Hill, 383, where the warranty was that the negro was sound, ns far as the seller knew. In this case, there is no doubt, the price paid was a full one, and hence, according to Spears vs. Wells, the law raises the implied warranty that the negro was sound ; but to this implied warranty it is replied, that the defendant refused to put any such warranty in the bill of sale. Now nothing can be clearer than that nothing can be implied against the contract of the parties. If the seller expressly refuse to warrant, there can be no pretence for raising the implied warranty. The law implies nothing contrary to the stipulation of the parties, and hence, in the case of Smith vs. The Bank of the State of South Carolina, Riley’s Ch. Rep., 113, where the seller stluck the clause of warranty out of the deed, it was decided in the Court of Equity, that there was no implied warranty. The reason of the rule is clear. The refusal, is notice, that the party does not intend to be bound further than his written contract goes, and he who buys after such notice, must take the thing purchased subject to the rule of caveat emptor. I have felt the full force of my brother O’Neall’s dissent, in the case of Venning vs. Gantt, Cheves’s Rep., 87, that where there is a refusal to warrant, or where a defect is pointed out or known, there is no implied warranty. But what amounts to a refusal to warrant, must, in general, be submitted to a jury to decide. If the defendant had simply refused to put the warranty in the bill of sale, I should have considered that (like the case of Smith vs. The Bank,) to be a refusal to warrant. Suppose he had said, “ I will not put it in the bill of sale, but the price is a full price, and the law implies a warranty from that”— would he not be bound ? The defendant refused to insert a clause of warranty in the deed, but went on to assign as a reason, “ that he never required it when he bought, and would not insert it when he sold” — “ that the price was a good one, and sufficient evidence that he thought the negro sound.” The matter has been submitted to a jury, with proper instructions, and by their verdict, they have established, that there was no refusal to warrant. The motion for a new trial, must, therefore, be dismissed.

Richards on, Butler, and Wardlaw, JJ., concurred,

O’Neall, J., dissented.  