
    Long and Byrne vs. Hicks, Adm’r of Webb.
    A warranty does not extend to defects which are visible to the vendee at the time of the sale and warranty, or to those of which the vendee is cognizant.
    Long and Byrne instituted an action of trespass on the case in the circuit court of Madison county, on the 1st day of April, 1839, against Hicks, administrator of Webb. There were two counts in plaintiffs’ declaration. The first set forth, that on the 7th day of February, 1837, the defendant, as administrator of Webb, deceased, in consideration of the sum of $825, sold to the plaintiffs two slaves, to wit, Hannah, aged 18 years, and her child Wesley, aged 15 months, by a certain instrument of writing signed by defendant, as administrator of Webb, (of which profert was made,) by which the defendant promised the plaintiffs that said Hannah and her child were both sound and well, and that the plaintiffs confiding in said promise and undertaking did buy the said slaves at and for the price of $825; that in truth and fact the said Wesley was unsound And diseased, and became of no value, &c.
    The second count was for money had and received. The defendant pleaded non assumpsit, upon which issue was taken. The cause was submitted to a jury at the April term, 1840, Judge Read, presiding. The plaintiffs introduced and read to the jury an instrument of writing in the following words:
    ■“Received of Long & Byrne their note at nine months, for $825 in full, for negro Hannah, aged 18 years, and her child Wesley, aged 15 months, both sold as the property of K. Webb, deceased, sound and well, free from all lawful claims whatever, given under my hand and seal, February 7th, 1837.
    A. W. Hicks, Adm’r.”
    It appeared from the testimony that the said Wesley was affected from his birth with a disease of the spine, and was diseased at the time of the sale and warranty; that the diseased condition of the boy was apparent to casual observation; that Byrne was told that the child was unsound and that he said the woman was worth the money.
    The plaintiff proved also that if Wesley had been sound, he would have brought two hundred and fifty dollars. The counsel for the plaintiffs objected to the introduction of testimony in reference to their knowledge of the unsoundness of the slave. The court charged the jury, that if the negro was unsound at the date of the warranty, there was a breach of the warranty, and that they were to disregai’d the testimony as to the knowledge of the plaintiffs in reference to the unsoundness.
    The jury rendered averdict for the plaintiffs for the sum of $182, and motion for a new trial having been made and overruled and judgment rendered, the defendant appealed in error to the supreme court.
    
      Brinkley, for Hicks.
    A warranty does not bind where it is visibly false, or the falsehood is known to the vendee. 2 Bing. Rep. 603: 10th Yes. Rep. 508: 10th Law Lib. 338: 2 Cains’ Rep. 302: Cro. Jac. 387. In this case, it was proven, that the unsoundness of which the plaintiffs complain, was so obvious and apparent that it could be perceived by the most casual observer, and it was also proven, that it was known to the plaintiffs. As the plaintiffs ^knew what they were buying, it is not for them now to object. It is to be supposed as this unsoundness was well known to the parties at the time of the sale, it was taken into consideration, and a deduction made therefor, in the price of the negroes. And this is evidenced by the conduct of one of the purchasers, who, when in-, formed the child was unsound, remarked, he did not care, as the woman was worth the money.
    
      Henderson, for Long and Byrne.
    This is an action on the case brought on a written warranty of soundness, signed by plaintiff in error as administrator, in the sale of certain negro slaves, part of the estate in his hands to be administered. The declaration alled-ges an unsoundness of a negro child, Wesley, included in the warranty, and this unsoundness, together with deterioration in value was proved on the trial by men of skill and science.
    The defence of the defendant below rests on the following evi-den.ce, offered in proof and excluded by the court from the consideration of the jury, to wit, that the child Wesley was at the time of sale obviously unsound to any person who would observe, and that one of the plaintiffs below, when told on the day of sale that the child was unsound, said “he did not care, the woman was worth the money.” Under these circumstances the warranty was executed. No fraud or circumvention is alledged or proved.— The question for the court is as to the propriety of excluding this evidence; and again, if received, has it any weight.
    1. The warranty is in writing and that writing is the only legitimate evidence on the subject, unless in case of fraud. 2 Starkie 902. In Mumford vs. McPherson, 1 John. 418, it was held that the contract of warranty having been reduced to writing every thing resting in parol was thereby extinguished. 2 Cains, 161: 5 Viner, 515, PI. 18; 517, PI. 26. In these cases it was attempted to bring in an additional warranty not contained in the writing, and if this cannot be done surely no parol statement of facts m direct contradiction of the writing should be received. See also Kain vs. Old, 9 Com. L. R. 207, 8.
    2. The alledged obvious and patent character of the defect and unsoundness does not discharge the party from his clear warranty freely and knowingly given. The rule only applies where there is doubt as to how far it was intended to warrant. 2 Starkie, 905. Butterfield vs. Burraus, 1 Salkeld, 211. ' Besides every principle of justice would estop a party from denying that which he has alled-ged in his solemn written warranty. Any expressions alledged to have dropped from the party, as to his indifference on the subject of the unsoundness, form no part of the contract of warranty and were well rejected. The verdict of the jury is moderate and Should not be disturbed.
   Tükeey, J.

delivered the opinion of the gourt.

The plaintiff in error sold to the defendants a negro woman and child and entered into a written warranty that they were sound and well. The proof shows that the child was unsound from his birth and of no value whatever, but that the unsoundness was so obvious that any one who had ever seen a negro might discover it by casual view, and that Byrne, one of the purchasers, upon being told, during the sale, that the child was unsound, said he did not care, the woman was worth the money. The court withdrew this testimony from the jury and instructed them to disregard it;- that the written warranty of soundness was binding on the vendor, an'd if the property was unsound at the time of sale and date of the warranty, there was a breach of the warranty. Under this charge a verdict was found in favor of the plaintiff below and judgment given thereon; to reverse which this writ of error is prosecuted.

The testimony rejected by the court was pertinent to the issue and ought not to have been withdrawn from the jury. A written warranty does not extend to defects which are visible, or of which the vendee is informed at the time of the sale. 2 Cains Rep. 202: 7th Bingham’s Rep. 603: 10th Law Library, 338, Croke Jac. 387. The charge of the court therefore is erroneous and the judgment must be reversed and the case remanded for a new trial.  