
    Richmond.
    Howell &c. v. Cowles.
    1849. October Term.
    (Absent Cabell, P. and Brooke, J.)
    
      H hires a negro man from C for a year, and with G executes his bond to C for the price; and the bond, after stating it is for the hire of the negro man, adds, “ to work at boat business.” C brings suit upon the bond, and the defendants offer a special plea under the act of 1831, that the said negro man was not suitable for, and did not perform, the work as stipulated in the bond, but was wholly unfit for the purposes for which he was hired ; and this the plaintiff well knew at the time of hiring said slave. And for further plea they say the consideration expressed in said bond has wholly failed. Held :
    1. The words, “ to work at boat business,” attaches no condition to the payment of the money.
    2. The bond is not the contract of hiring, but a contract for the payment of the hire that had been agreed upon.
    3. If the obligors relied upon the contract of hiring as furnishing them with an equitable defence, they should have set it out according to its terms or legal effect; and should have alleged distinctly any fraud or warranty in regard to it, upon which they founded their defence.
    4. Fraud cannot be inferred from the unfitness or unsuitableness of the slave for the purpose for which he was hired, and a knowledge of such unfitness on the part of the owner.
    5. Even an express warranty of fitness or suitableness, though it might be understood to cover essential physical or mental defects, yet it would not extend to the absence of moral qualities, or of experience in the particular business, unless specified.
    This was an action of debt on a bond in the Hustings court of the City of Richmond, brought by Thomas Cowles against Charles Howell and John Gaynor. The defendants appeared at the first term of the Court after the suit was brought, set aside the office judgment, and pleaded payment. On the next day the cause was called for trial, and the defendants then offered a special plea under the act of 1831. The plaintiff waiving all exceptions to the form of the plea, objected to it as not presenting a substantial defence to the action, and the Court sustained the objection and rejected the plea. Whereupon the defendants excepted.
    The defendants craved oyer of the bond declared on, which was set out, and bound the defendants to pay to the plaintiff on or before the 1st day of the next January, “ 135 dollars, being for the hire of a negro man the present year, by the name of Tom, to work at boat business, said negro to be clothed,” &c.
    The plea then proceeds: which being read and heard, the said defendants say that the plaintiff ought not to have his .said action against them, because they say the said negro slave Tom, in the said writing mentioned, was not suitable for, and did not perform, the work as stipulated in said bond, but was wholly unfit for the uses and purposes for which he was hired, and this the plaintiff well knew at the time of hiring said negro slave; and by which the defendants sustained damages to the amount of 135 dollars. And for further plea they say, that the consideration in said bond expressed, has wholly failed, and .that the plaintiff ought not to have his said action against them, and of this they put themselves upon the country..
    There was a verdict and judgment for the plaintiff ; and the defendants carried the case by supersedeas to the Circuit court, where the judgment was affirmed. They then applied to .this Court for a supersedeas, which was awarded.
    
      Morson and Seddon, for the appellants.
    The plea comes within the .act of 1831, allowing special pleas in certain cases: first, on the ground of fraud; second, on the ground of warranty; and third, on the ground of failure of consideration of the bond. The act, Supp. Rev. Code 157-8, points out the cases in which such a pica may he filed. In this case the plea sets out the bond, so that it is a part of the plea.
    We will first call the attention of the Court to the class of cases in which it is held, where there is a particular object in the purchase of an article, and that object is stated at the time, and the article is sold for that purpose, that this is an implied warranty. The same principle must apply to the case of a hiring for a specific object. In Jones v. Bright, 15 Eng. C. L. R. 529, the principle is asserted, and it is applied to all manufactured articles. Story, in his work on Contracts, § 541, distinguishes between the cases where there is a mistake in the thing, and where there is a defect of quality. In the first, he says, the contract is void. In § 543, he states the principle as to the warranty; and it is, that any misrepresentation which is material, especially if the misrepresentation is fraudulent, is a warranty. Here the plea sets out the facts, and avers knowledge on the part of the plaintiff. Chitty on Contracts 450. This writer says, that a bare representation of the quality of goods will amount to a warranty, if there be nothing to negative that conclusion. Chitty on Contracts 453. If a mere misrepresentation or advertisement by the seller before the contract is made, is a warranty, a fortiori, when the representation is embodied in the contract, it is a warranty.
    Then, on the ground of the failure of the consideration of the bond. Where one party seeks to have an article for a particular object, and the other party professes to furnish it, if the article does not answer for the object, it is a failure of consideration, even where there is a mutual mistake and no fraud. Story on Contracts, § 102, 107.
    No question arises in this case as to the form of the plea, as all formal objections were waived by the plaintiff.
    
      
      Daniel, for the appellee.
    The plea does not allege a warranty or a false representation; and unless we wander beyond the plea to the bond, there is no charge as to representation, or of hiring for a particular object. The bond itself is no part of the plea, as the craving oyer of the bond made it not a part of the plea, but of the declaration. Armstrongs v. Armstrongs, 1 Leigh 491.
    But if the bond is to be looked to, as a part of the plea, it does not give us the representations of the plaintiff. He did not sign it or speak by it.. But if he did, it may have been intended to confer a privilege on the hirer to use the slave as a boatman ; a dangerous employment ; or it may have been intended that the hirer should teach the slave the art and mystery of boating.. An allegation of a warranty, and still more of a fraud, must be plain and express. Jackson v. Wetherill, 7 Serg. & Rawle 480. The jury, if the proof is by parol, and the Court, if it is by a written instrument, must be satisfied that it was the intention to warrant. Oneida Co. v. Lawrence, 4 Cow. R. 440.
    The object of the statute was to allow a defence, such as might entitle the party to recover in a separate action for a breach of warranty or for a deceit. Where the contract is not rescinded, the claim is for damages; but this defence cannot go to the whole cause of action. If the contract was rescinded, it should have been alleged. That not being alleged, these defendants are seeking to defeat the whole action of the plaintiff, when they can only be entitled to partial damages.
   Baldwin, J.

delivered the opinion of the Court.

The single bill upon which this action is brought, is a simple and absolute obligation for a sum certain, and the mention which it makes of its consideration, to wit, “ the hire of a negro man,” “to work at boat business,” attaches no condition whatever to the payment of the money. It is the language of the obligors, assented to by the obligee, but is no covenant or agreement on the part of either. The single bill is in no wise the contract of hiring, but a contract for the payment of the hire that had been agreed upon : And if the obligors relied upon the contract of hiring as furnishing them with an equitable defence, they were bound to set it forth according to its terms or its legal effect, and to allege distinctly any fraud or warranty in regard to it, upon which they founded their defence ; and neither a fraud, nor a warranty, could be properly left by the plea to conjecture or inference.

The law attaches no warranty of fitness or suitableness, or even soundness, to the hiring of a slave. There may be an express warranty of soundness or qualities, and there may be cases in which an implied warranty arises from circumstances; but in either case the warranty must be stated, and the breach of it alleged in the pleading. So there may be a fraud in the contract of hiring, by a wilful representation of a falsehood, or suppression of the truth; but the fraud must be averred and specified. And it is of the essence of the fraud, that the other party was deceived by the misrepresentation or concealment.

The special plea in this case alleges no fraud, and none can be inferred from the unfitness or unsuitableness of the slave for the purpose for which he was hired, and a knowledge of such unfitness or unsuitableness on the part of the owner; and that was a subject for enquiry and judgment on the part of the bailee, and he has no ground of complaint unless he was deceived by the bailor, not as to matter of opinion, but as to matter of fact. Nor does the plea allege any warranty of soundness or quality. Even an express warranty of fitness or suitableness, though it might be understood to cover essential physical or mental defects, yet it would not extend to the absence of moral qualities, or of experience in the particular business, unless specified.

And for aught that appears from the plea, the hirer acted upon his own knowledge or judgment of the fitness or suitableness of the slave, and introduced into the single bill the purpose for which he was hired, in or¿er in¿icate that he had the privilege of employing him in a service of more than ordinary exposure and peril. It was a privilege, however, that he was not bound to exercise : he was at liberty to employ him in any other proper service; and the inference from the silence of the plea is that he did so employ him.

The special plea offered was therefore not merely shapeless in form, but also worthless and unmeaning in substance; and was properly rejected by the Hustings court.

Judgment of the Circuit court, affirming that of the Hustings court, affirmed, with costs to the defendant in error.

Judgment affirmed.  