
    Ashley vs. Reeves.
    ■Whan property is sold at a reduced price on account of a .known defect, but paid for as sound in other respects, the purchaser may still-claim a deduction, under an implied warranty, for any other defects.
    An action for money had and received on account of the failure of an article purchased, can not be maintained until the property lias been returned or tendered back; but to support an action on tlie warranty, it is not necessary that the property should either be tendered or returned. And this rule relates as well to implied as to expirees warranties.
    And in declaring on an implied warranty, the declaration is the same as upon an express warranty.
    ■’Tis not every special assumpsit, that is an express assumpsit; for h, s/iecial promise may as well arise by implication of law as by the ex-piress promise of the party.
    
      Tried before Mr. Justice Noli, Newberry, Spring Term, 1823.
    THIS Was an action of assumpsit on a note of band, for five hundred dollars, which had been given for a negro fellow. The defence set up, was that the negro was unsound. The witnesses all agreed that the negro was lame, that there was a large scar on his hip or thigh. Whether that was the cause of his lameness or not, they did not know. One witness who was present at the contract, said that the defendant was aware of the lameness when he purchased, and said that if the plaintiff would warrant him sound in every other respect except the lameness in the leg, he would take him. He thought the negro sold at a reduced price on account of his lameness. Such á negro, if sound, would have been worth at thai time, from eight hundred to a thousand dollars. One witness said he appeared disordered in the breast. The breast bone appeared sunk in. Another witness said he appeared tobe injured in the arms. Several of the witnesses said he complained often ; was able to do but little work, and they thought him entirely worthlesss. It appeared that four hundred dollars had been paid on the note. But that it had been paid by the defendant’s wife when he was from home, and that he expressed his dissatisfaction at it when he returned.
    It was contended on the part of the plaintiff, that the defendant was not entitled to this defence, as he had not tendered back the property.
    The cause was tried at Newberry, Spring Term, 1823.
    The presiding Judge instructed the jury that it was not necessary to return the negro or to tender him back. And that if they were satisfied that he was sound or that he answered the description given of him at the time of the sale, they ought to find for the plaintiff, otherwise for the defendant.
    The jury found for the defendant.
    And this was a motion for a new trial on two grounds,
    
      
      1st Because the verdict was contrary to evidence.
    2nd. On the ground of misdirection of the court.
   Mr. Justice Nott

delivered the opinion of the court:

This case does not essentially differ from most of the cases of this description with which our dockets are crowded. The defendant agreed to take the negro, provided the plaintiff would warrant him sound in all respects, except the lameness in one leg. The silence of the plaintiff seemed to imply an acquiescence in those terms, and so the defendant certainly understood it. And although an implied warranty usually arises from the party’s having paid the full value of the property, and although this negro was sold at a reduced price, yet the induction was for the lameness in the leg only, and the plaintiff received a full price for him as sound in all other respects. If, therefore, he was unsound in any other respect, the plaintiff was liable. One witness said that he appeared disordered in the breast. Another, that he appeared to have some defect in the arms. This testimony to be sure, did not appear to me to be very satisfactory. Nor did I consider the witness very competent to determine the questions. Yet these were questions for the consideration of the jury. Besides, several of the witnesses said he often complained, appeared able to do but very little work, and they thought him entirely worthless. This testimony .also may appear rather too general and unsatisfactory. Yet, perhaps a negro ilaay be so totally decayed throughout his whole system,, that the unsoundness may appear manifest even'toa common observer, who could not trace it to any particular cause nor be able to lay his finger on the spot where ihe disease was seated. And although I would always recommend to a jury to be cautious how they found a verdict on such evidence, I am not prepared to say they may not do so, or that their verdict ought not to be supported.

There is one point of law made in this case, which I thought had long ago been settled in this state, but respecting which, I find that some diversity of opinion still exists, to wit: That the defendant could rot avail himself of this defence without having returned the property to the plaintiff or tendered it to him. I have always understood the rule to be, that whenever a person can maintain an action as plaintiff, he may avail himself of the same matter by way of defence when he becomes defendant, provided the defence be a subject matter of set off. The question then is, could Ibis defendant have maintained an action on the warranty for the unsoundness of this negro ? The distinction which has always been made in this state, is that an action for money had and received cannot be maintained until the property has been returned or tendered back. And for the most obvious reason. The purchaser cannot keep the property and recover the money also. It. is not until the contract is rescinded, as far as it is in the power of one party to rescind it, that the other is considered as having received the money to his use. So in England, it is held that an action for money had and received, is not the proper action to try a warranty ; but the action must he brought on the warranty itself. But it is pontended that this relates to express warranties only, and that an implied warranty does not furnish a ground for a special assumpsit. I apprehend, however, that this is a mistake. In declaring on a warranty, the form of the declaration is precisely the same, whether the warranty be express or implied. It appears to me that the mistake has arisen from confounding an express assumpsit with a special assumpsit, rp 1 considering them as synonimous terms. But a special promise is not necessarily an express promise. ' It may as well arise by implication of law as by the express promise of the party. Thus, if a person enter into an express contract to build one a house, the same implies a promise that he will do it in a .workmanlike manner. And if he do the work and yet fail to do it well, he will be liable to a special action on the case, for that breach of promise. So, if one man sell another a negro for a full price, the law implies a warranty of sound-boss, for a breach of wjiich he may have a special assumpsit. But he cannot have á general indebitatus assumpsit, because he owes him nothing. If the property is unsound, the warranty is broken. If the contract is violated on one side, it is dissolved on the other, and he may return the property or tender it back, And then he may maintain an action of indebitatus assumpsit for money had and received. The objection, therefore, that the defendant .bad not tendered back the property, will not deprive him of the benefit of his defence, and the motion must be dismissed .

Stark, for the motion.

O’Neal fy Johnson, contra.

Justices Colcocie, Richardson, Gantt and Huger, concurred .  