
    John F. Wallis v. Isaac Frazier.
    
    Where a vendor gives a written warranty of soundness of a negro, which after-wards is found to he unsound, it is immaterial whether the vendee knew of the unsoundness or not; it is a mere matter of contract, and the vendee is entitled to recover the difference between the value of the negro, if sound, and his actual deterioration by the unsoundness.
    Where a warranty of the soundness of a negro is given, which afterwards proved to be injured from twenty-five to thirty per cent, by disease, and the jury give mere nominal damages, a new trial will be awarded, 
    
    This was an action of assumpsit, tried at Columbia, Spring Term, 1820, on an express written warranty of the soundness of a negro.
    The plaintiff proved the sale, the warranty, and the unsoundness.
    The defendant then offered testimony to prove that the plaintiff was apprised of the unsoundness when he purchased ; that testimony was objected to by the plaintiff’s counsel, but was admitted by the Court. It then appeared by the evidence, that the negro had a *sore on his leg, which was represented «.■,» to be of recent origin, and from its external appearance, was not calcu- *• 0 lated to induce a belief, that it would essentially impair his value. The plaintiff however, being suspicious of it, required the warranty which was entered into. It also appeared afterwards, that the negro had been, for some time previous to the sale, under the hands of a doctor who pronounced it to be a white swelling, and that it would probably be incurable, and that it lessened his value from twenty-five to thirty per cent. It was proved that he continued in the same situation up to the time of the trial.
    The jury found a verdict of one cent for the plaintiff, and this was a motion for a new trial, on two grounds;
    1. Because the presiding judge permitted improper evidence to be given to the jury.
    2. Because the verdict was contrary to evidence.
    
      Nott and M‘ Cord, for the motion. Starlc, contra.
    
      
       S. C. ante, 180.
    
    
      
      
         J. P. Walks v. Isaac Peaziek.
      Columbia, May Teem, 1821.
      Tried Before Mr. Justice Gantt, Columbia.
      This was an action to recover damages, by reason of the unsoundness of a negro, sold by the defendant to the plaintiff, for $320, and warranted to be sound.
      A new trial had been before ordered, and the evidence adduced was very nearly the same as upon the former trial, need not be recited particularly again. The negro was proven to have been unsound from a permanent swelling, and the witnesses said, as before, that his value was less by reason of that swelling than it would be if perfectly sound, by about twenty-five per cent, or thirty per cent. But it -was also proven, that he was, notwithstanding the swelling, now worth §450, and that the plaintiff had confessed that the defendant had offered to rescind the contract Before the suit was Brought.
      The jury again found a verdict for one cent damages; and the motion was for a new trial, upon several grounds. But the only one relied upon was, that inasmuch as the Court set aside the same verdict Before given, upon similar testimony, the Court will, for the reasons given for the new trial Before, now order a third trial.
      The opinion of the Court was delivered By Mr. Justice Richabdson.
      There can Be no doubt that the plaintiff is entitled to a verdict, But for how much is uncertain. It seemed unreasonable that the jury, upon such testimony, should give But one cent, and a new trial was ordered. But as two ^juries q have, upon the same testimony, drawn the same conclusion upon a matter *• of fact; as they Both have literally supported the law, in finding for the plaintiff ; and as we can lay down no rule for measuring the verdict with precision; as the plaintiff has, in fact, not lost, But gained By the contract, substantial justice does not require that he should have a second new trial. He relies upon the letter of his contract, not upon the actual loss he has suffered, and although he is entitled to a verdict, yet, to what amount, is uncertain. Eor the opinion of the witnesses was By no means imperative upon the jury, though, from the strength of their testimony, it was just to afford a second opportunity for greater consideration.
      In such a case, I am disposed to say, with lord Mansfield in Farewell v. Chuffey, Burr. 54, '‘ a new trial ought to Be granted to attain real justice; But not to gratify litigious passions upon every point of summum jus.”
      
      The judge, in that case, cites many instances of verdicts against Both the strict rule of law and the evidence, where the Court would not grant a second chance of success to a hard action. And though I would not charge the plaintiff with an unconscionable act in demanding his strict legal rights, yet his claim Being undefined in amount, and it Being proven, that he would not give up his original contract, and is a real gainer By it, I can perceive no sufficient reason for giving him a third chance, not merely to recover a verdict, But to augment his damages to an amount which it does not appear he ever did actually sustain. The motion is, therefore, dismissed.
      Coicock, G-antt, and Johnson, JJ., concurred.
      
        Nott and Me Cord, for the motion. Static, contra.
    
   The opinion of the Court was delivered by

Nora, J.

The view which the Court has taken of the second ground made in this case, renders it unnecessary to decide the first, aud the diversity of opinions prevailing- in the Court respecting it, renders it inexpedient that I should express my own.

Both parties were aware of the unsoundness at the time of the contract, but both perhaps ignorant of the extent of the injury. Hence the cause and the necessity of the warranty to indemnify the purchaser against the possible and even probable result, that it might become, as it actually has, permanent and incurable. It was a matter of contract on the part of the defendant, and whether the plaintiff knew of the unsoundness or not, was immaterial; the defendant is bound to perform his contract. If it had been an implied warranty, arising from the soundness of price, it would have been rebutted by the plaintiff’s knowledge of the fact, or if it had been the object of sense alone, as the total loss of a leg or an eye, &c., it would not *have been embraced in a general warranty; but being a case in which great skill and judgment were required to be exercised, it must be considered as coming within the warranty, unless a special exception had been made. Being a plain matter of contract, the terms of which were stipulated by the parties themselves, the difference between the value of the negro, if sound, and his value in the situation which he was, became the rule by which the damages ought to have been estimated. The testimony on the point was clear and uncon-tradicted, and the jury were not authorized to disregard it, and adopt an arbitrary rule of their own, unsupported by any testimony. The verdict was clearly against evidence, and a new trial must be granted.

CoiiCOOK, -RichARDson, and HugeR, JJ., concurred.

See 6 Rich. 169. 
      
       Chev. 188.
     
      
       See 4 McC. 157.
     
      
       Ante, 186.
     