
    J. A. Wood, Administrator of Garvin, v. R. C. Ashe.
    Where the unsoundness of an article was known to the purchaser, the law will ¿nipíy no warranty of’unsoundness.
    Tiie express contract, whatever it may be, excludes any implied one, and is alone the evidence of what was intended by the parties.
    Parol, contemporaneous evidence cannot be received, to contradict, vary or add to the terms of a written agreement.
    An action will not lie on an express parol warranty of soundness, when the purchaser takes a written warranty of title, omitting the warranty of soundness.
    The case of Wells v. Spears, 1 M’C., 421, reviewed and limited.
    Tried before Mr. Justice Butlek, at Barnwell, Fall Term, 1846.
    This was an action of assumpsit for the breach of an express warranty of soundness in the sale of a negro woman.
    The facts that cams out in evidence were as follows:
    Richard C. Ashe, Senior, by his will, gave to his two daughters, Mrs. Hext and Mrs. Garvin, three hundred acres of land. For the purpose of effecting partition, the land was advertised for sale. From some cause it was not sold at the place advertised. By the invitation of the defendant, brother of the ladies who had an interest in the land, they and their husbands assembled at his house. The defendant proposed to buy the land. Lawrence Hext, the husband of Mrs. Hext, agreed to take $1200 for his share, and it was given. The defendant offered to buy Garvin’s interest, if he would take a negro woman and her children. Garvin, who was an intemperate man, and not upon good terms with defendant, made some inquiries about the negroes, and ascertained that the woman was sick in bed, and objected to take her as part of the price oí the land. Samuel Cohen said that he rode to the house about dinner time. Ashe and Garvin were talking about the trade. Garvin seemed to be anxious to get rid of the land. Ashe said, “I will let you have the negroes for it.” Garvin said, “I won’t trade for sick negroes.” Ashe said, “Well— there they are, take them or not, as you please; I don’t care about it, as I have land enough.” Garvin then took witness aside, saying, “Will you take the negroes for your land that I wish to buy?” Witness refused, and advised Garvin not to take them. Garvin returned into the house, and remarked, “Richard, do you wish me to lose anything by you?” Defendant said, “Did you ever lose any thing by me?” Garvin said “No,” and the trade was concluded.
    Mary D. Garvin was then called on the part of the plaintiff, and objected to on the ground of interest. She immediately said she would release all her interest, and after that 1 heard no more of it. Indeed, I supposed that all objections were waived or withdrawn. She was sworn, and gave the following evidence of what must have occurred after the bill of sale was drawn, and before it toas signed:
    
    The sickness of the negro being spoken of, Mrs. Garvin said to defendant, “I hope you have not imposed on me a sick negro.” Ashe replied, “Keep the negro, and if she dies you shall not lose her,” and said, “go and look at the negro.” Garvin did so, and returned and said, “I would rather be paid in any other property than sick negroes.” Ashe replied to Garvin, “Keep the negro, and if she dies you shan’t lose.” Her brother, the defendant, then told her to persuade Garvin to take the negro, saying, “you shan’t lose.” The negro died in three weeks after, and the witness said she took it for granted that her loss would be made good. The defendant, howrever, refused to pay Mr. Garvin for the negro in his life time.
    Lawrence Hext said h_ drew the bill of sale at the instance of the parties. He only inserted a warranty of title. After the paper was written, saw Garvin and Ashe talking at the comer of the house to themselves. Heard Ashe say, “You shall lose nothing by it,” and he passed on. In a conversation afterwards, the witness mentioned to Ashe what he had heard, and Ashe denied it. They both became heated, and Ashe came after some time, and said, “you may have heard such a remarle from me, but it referred to something else.” It was in answer to Garvin, who had said he wished to be guarded from the imposition of witness. Since then the witness and Ashe have not been friendly. Ashe and Garvin were not friendly. Garvin went to defendant’s house by his invitation. Spirits were put out, and Garvin drank.
    James Humphries said, some short time after trade, he heard defendant speaking of getting land for negroes, and one of the negroes would die. Witness said, “Well, then, what will be done?” Defendant replied, “I expect I shall have to make it good.”
    The presiding Judge said to the jury, that although there was no express warranty in the bill of sale, it was competent for the defendant to make one by parol independently of it. The question was, had he done so? At one time he seemed to decline to assure the soundness of the negro; but at another time, and his Honor thought at a subsequent time, he was willing to give such an assurance as would amount to an express warranty. As a question of fact, it was left to the jury, and they found a verdict of $800 for the plaintiff. Some questions of law had been made to the Court, and were decided in favor of the plaintiff.
    The defendant moved for a new trial. The following grounds of appeal only were urged before the Court.
    1. That the unsoundness oí the slave being fully known to the purchaser, warranty of soundness cannot be implied; nor can plaintiff recover, without showing an express stipulation to make good all losses arising from unsoundness, which express stipulation was neither set forth nor proved, but on the contrary, was disproved.
    
    
      2. That when the evidence was fully developed, it appeared that Garvin, on the day of purchase and instantcr, convoyed by deed (founded on sufficient consideration,) the slave in question, to his wife and children, without any warranty of soundness express or implied: nor can his administrator recover damages in this case for unsoundness, any more than if Garvin had sold to a stranger, without warranty of soundness express or implied, or given the slave to a stranger.
    
    3. That when the evidence was fully developed, it appeared by proof, on the part of the defendant, that the sale of the slave in question was not by parol, but by written contract, (viz: a bill of sale,) which contained nothing but a warranty of title, and as the proof was clear and abundant, that Garvin bought the slave with full knowledge of the disease, and as therefore, plaintiff cannot recover without showing an express warranty of soundness, it is submitted that he cannot recover at all, because the written warranty of title is incompatible with, and negatives the existence of an express parol wa? ranly of soundness; nor does a bill of sale form any exception to the general rule, that a written contract can be neither limited, nor enlarged, nor altered by parol.
    
    4. Because the veidictis contrary to evidence.
    5. Because the verdict is contrary to lawn
    Bellinger, for the motion.
    Unsoundness was brought home to the purchaser; Porcher v. Caldwell, 2 M’Mul., 329; Farr v. Gist, 1 Rich., 68; Limehouse v. Gray, 1 Tread., 73; Lyles v. Bass, Cheves, 85; Hart v. Edwards, 2 Bail., 306; Miller v. Yar-borough, 1 Rich., 48. The seller cannot be mulct for implied warranty, when the purchaser knew of the unsoundness. Can a warranty run with a negro? Garvin lost the advantage of giving his wife a more valuable present, but can he recover damages? If the evidence proved an}7 thing, it proved an express contract. Parol evidence shall not alter, &c. a written contract; nor shall a contract exist partly in writing and partly in parol; Roseman v. Hughey, Rice R., 437; Reed v. Ancrum, 2 M’C., 167; Allen v. Potter, 2 M’C., 323. Express warranty excludes any other on the same paper; Stucky v. Clyburn, Cheves, 186. Parol evidence inadmissible to alter, &c.; Clark v. M’Millan, 2 N. C. Rep., 265; M’Uonald v. Beckliff, 2 Mills, 267. The bill of sale should be the only evidence received of the sale, or contract; 3 Stark., 1006; Noland’s Rep., 270; 12 C. L. R., 35. Garvin gave away the property, and is not now damaged; 11 C. L. R., 480. Fraud would make an exception, but no fraud has been proved in this case. Did the parol contract exist before the bill of sale? If so, it was merged by the writing. If it was made afterwards, it required a new consideration; Smith’s Law of Con., 25; Dickerson v. Dickerson, 1 Murphy N. C. Rep., 426; and Smith v. Williams, in note.
    A. P. Aldrich, contra.
    
    Even where one party has been benefited, and the other has failed in his contract, the failing party is liable; Chitty on Con., 437, Title, Goods. Can a written instrument be enlarged, &c., by parol? It is admissible for parol to prove an independant fact, or collateral agreement; Davenport v. Mason, 15 Mass. Rep., 85; 2 Starkie Ev., 752, note; 1C Sargc. & Rawls, 424; 1 Chit, on Con., 465. A receipt or parol may prove the warranty in the sale of a horse; Chit, on Con., 109. Unless the statute of frauds requires the agreement to be in writing, parol may aid in proving the contract.
   Evans J.

delivered the opinion of the Court.

The four grounds in arrest of judgment, and the first and second for a new trial, were not insisted on in this Court, They contain objections to the declaration, but as they were not brought to the attention of the Court, 1 shall consider them as abandoned, as the 3d and 4th were at the hearing. There can be no doubt of the truth of the proposition contained in the 5th ground, that where the unsoundness was known to the purchaser, the law will imply no warranty of soundness. This principle runs through all our decisions on the subject. He who buys a negro with a knowledge that the negro is diseased, without taking a special warranty, buys with his eyes open, and at his own risk. If the disease proves fatal, or worse than he expected, he can blame only his own folly. In such case he should take an express warranty, and if he does not, the law will not aid him by the implication of a warranty, when, after due notice, he omitted or neglected to take one himself. I think it very clear, that Garvin had notice that the negro was sick, and in consequence thereof he cannot recover on the implied warranty.

The next question is that made in the 7th ground in the brief, whether having taken a bill of sale in writing, containing an express warranty of title, he can be allowed to prove a parol warranty of soundness, or in other words, can that which was stipulated between the parties in relation to the subject of the contract, and at the time of the sale, be proved partly by writing and partly by parol. The case of Wells v. Spears, reported in 1 M’C., 421, decides that the implied warranty of soundness is not excluded by the express written warranty of title; but that case goes no further than this, that the implied warranty is not excluded where the parties have not stipulated on the subject; but whenever it appears that there was a contract, whether written or verbal, then all implication is excluded. The express contract, whatever it may be, excludes any implied one. The express contract alone is the evidence of what was intended by the parties. A warranty of soundness is a contract to indemnify the purchaser against any loss arising from the unsoundness of the thing sold, and I am disposed to think the words used by Ashe, “keep the negro, and if she dies you shan’t lose,” was such a warranty as was binding oil him, if consistently with the rules of law, he can avail himself of it. There is little doubt of the justice of the plaintiff’s case, and this Court would most gladly allow him to keep his verdict if it could be done consistently with the rules of law; but these must not be sacrificed to attain wliat we may suppose to be the justice of a particular case. The presiding Judge reports tbat “be instructed the jury, that although there was no express warranty in the bill of sale, it was competent for the defendant to make one by parol independently of it;” and the question we are to decide, is, whether this charge is consistent with the law. On looking into the common law authorities, the rale will be found of universal application, that where the parties have deliberately put their agreement in writing, in such terms as import a legal obligation, it is conclusively presumed that the whole engagement of the parties, and the extent of their undertaking, was reduced to writing, and all oral testimony of a previous colloquium, or of conversations or declarations at the time, or before, are inadmissible; or in other words, parol contemporaneous evidence cannot be received to contradict, vary or add to the terms of the written agreement. This rule is so stated by Greenleaf, (1 Greenleaf Ev., sec. 275,) and in all the authorities. The reason of the rule is well stated by Taylor, C. J., in the case of Clark v. M’Millan, 2 No. Ca. Law Rep., 265, that if the rule were otherwise, the effect “would be to prove by inferior evidence that, that which purports on the face of it to be the written memorial of the defendant’s contract, is in truth not so; such evidence is inadmissible according to all the authorities.” Indeed there is no doubt that the rule is as stated, and that the case of Wells v. Spears, was an invasion of it. That case was a carrying; but the doctrine established in Shoolbred v. Timmons, that the law implies a warranty of soundness where a full price was paid. Bui. neither of these cases authorize any conclusion that an action will be on an express parol warranty of soundness, where the purchaser takes a written warranty of title, omitting the warranty of soundness: The case of Wells v. Spears has always been considered as encroaching not a little on the wholesome rule of the common law, that where the parties put their contract in writing, the writing shall be the sole evidence 0^" what the contract was. It shall not be added to or varied by the “slippery memory of man.” In the case of Porcher v. Caldwell, 2 M’Mul., 329, it is said, that the omission to insert a warranty of soundness in the bill of sale, though it does not rebut conclusively the implied warranty, is a circumstance which should always be submitted to the jury as evidence that no warranty was intended. We are not disposed to extend the rule in Wells v. Spears, so as to include as well the cases where there is no stipulation on the subject of soundness, as to those where there is an express contract on the subject. In cases of express contract, the writing alone must be the evidence, not of part, but the whole contract.

The motion for a new trial is granted; but if the plaintiff can vary his case by proof, leave is granted to him to amend his declaration by adding additional counts.  