
    
      G. C. Heyward v. Andrew Wallace.
    
    The presumption always is, in the absence of proof, that the parties to a written agreement between them have, on the subject matter, expressed their whole agreement.
    Where under the instructions given to the jury they might well be considered as having negatived the sufficiency of the evidence to rebut the presumption that the bill of sale of a vessel contained the whole agreement, to the exclusion of any implied warranty of soundness, the verdict was sustained.
    
      Before the Recorder, in the City Court of Charleston, February Term, 1849.
    His Honor the Recorder reports as follows :
    This was an action of assumpsit, on an alledged warranty upon the sale by the defendant to the plaintiff, of the sloop South-Carolina, in regard to certain particulars in which plaintiff alleged she was deficient, and the warranty therefore broken, and claimed as damages the sum of $298 and interest.
    The testimony was as follows :
    
      Jerry Walter, sworn.
    Witness is an auctioneer, was employed by the defendant to sell the sloop South-Carolina, at auction, 28th of February, 1848. Sold her by orders of defendant; advertised her and described her by directions of defendant in the Courier. Advertisement, dated 24th February, 1848. — “ Will be sold on Monday, 29th inst. on Central, (late Fraser’s) wharf, south side, without reserve, the remarkable fast sailing sloop, recently smack, South-Carolina, about 45 tons, has just been new planked, bottomed and additionally timbered, copper-fastened from keel to deck; is well found, perfectly tight, and in complete order for employment. — Conditions cash. Feb. 24th.” She was sold under the advertisement to the plaintiff. Entry in sale book, $475. Price was paid to witness, the notice was three or four days before the sale. The same vessel was afterwards put into the witness’ hands for sale (by plaintiff,) on July 10th, 1848. She was sold, and account sales here produced, and proved by witness.
    
      Cross-examined. Upon the first sale, through witness, from defendant to plaintiff, the vessel was in good order; she had a new ceiling, inside bottom new, was perfectly tight; she was well known as a fishing smack, was a very cheap vessel, could have got five hundred dollars for her at private sale; she was resold in July. Plaintiff had her in use; plaintiff said he wanted to sell her, the only fault was, she drew too much water for his landing, that he had no other objection to her. When brought to him the second time, the vessel was water logged; asked plaintiff if he had done anything to preserve the bottom from worms; he said he had done nothing; one beam had been cut away, and sails torn when brought back, it was with difficulty she could be kept from sinking; worms commence eating in April, would eat materially in less than a month ; in mid-summerwoulddosoin two weeks. The vessel now has the same frame, new sails, is going to sell her again; she would be sufficient fora voyage to the Pacific; such a vessel would be worth fifty dollars a month.
    
      In reply. The only fault alleged by plaintiff was that she drew too much water for his landing. Witness did not see her bottom, he went into the hold, it was all dry. There was a new plank ceiling. Thinks the vessel since the outlay on her worth now $1000.
    
      Wm. Bird, sworn.
    Witness is a shipwright; in March, 1848, plaintiff sent the vessel to grave her bottom; found her bottom considerably wormed, or worm eaten ; had to put one piece of plank in her bottom; found her bottom pieced, holes which had been necessary to her as a smack were plugged up. This, witness considered unsafe ; did not consider her newly bottomed; she was brought back in July, had made one trip, thought her unsafe, and that she required a new bottom ; a trip to Combahee takes about two weeks.
    
      Cross-examined. Vessel was formerly a fishing smack; holes were plugged up; deck good; one beam had been cut away, it might have been for freight; timbers were good, except about the well; charged plaintiff for putting in a plank; worms attack new plank sooner than old ; they attack in a month if care be not taken. In July, worms are very little worse. She was built for a fishing smack, was narrow.
    
      In reply. In March would not have given four hundred dollars — would have cost from two to three hundred dollars to put her in the condition represented in the advertisement.
    Here a statement was made by Mr. Walker, plaintiff’s attorney, which was admitted by Mr. Seymour, defendant’s attorney, to wit:
    That on the 22d June, 1848, Mr. Walker, for plaintiff, addressed a note to the defendant, complaining of defects in the vessel; that on the 23d, Mr. Seymour said he would appear for the] defendant; that on the 26th June the vessel was considered as tendered to defendant. On the 29th of June, advertisement of sale was furnished Mr. Seymour, that the re-sale was to have been on the 3d of July, but was postponed. That on the 8th of July, she was adveitised a second time, and that the sale took place on the 10th of July.
    A regular accouut of this resale was produced and proved ; the nett sales was $176 90, which being deducted from $475, the price paid by plaintiff, left the sum of $298 10, which he claimed from the defendant as damages, with interest.
    Here the plaintiff closed.
    
      The defendant introduced the following testimony :
    
      R. J. Eason, sworn.
    Knows the vessel; when first sold by defendant to plaintiff, she appeared to be in good order; the second time when she came back, she looked like a wreck, appeared not to have been taken care of; did not look like the same vessel, was leaking, she was then on South Bay, no one taking care of her, she could not be brought round. At the first sale she was tight, dry, her sails good. In June, plaintiff asked witness if he would sell her for him; plaintiff only complained that she drew too much water: afterwards, late in June, plaintiff went to Walter to sell her. The vessel had been employed in bringing cotton and corn from the south, and in carrying provisions there.
    
      Cross-examined. Witness did not examine vessel at first sale, judged she was in good order from her appearance. Plaintiff afterwards objected to Walter, that she did not answer the advertisement; had not a sound bottom ; when witness Sc.w her at South-Bay, she was at Mr. Bird’s ship-yard. Her sails were sound when first sold, vessel painted and in good order.
    
      In reply. She was lying on her side at ship-yard, no one taking any care of her.
    
      I. T. Brown, sworn.
    Witness is a seaman, knows vessel, offered plaintiff six hundred dollars for her, just after he had purchased her, plaintiff refused ; was then in good condition; examined her with a view to purchase, every thing was in good order, she was considered a fast sailer; used to bring freight. Plaintiff’ asked witness how much she would carry. Has seen her in plaintiff’s service; she went to Beaufort, Bluffton, for freight; has seen cotton brought by her; vessel lying in the dock gets injured in three weeks; pieces are put in when the worms are bad ; should g'ave every six weeks ; worms are not so bad when running partly in fresh, and partly in salt water, alternately.
    
      Cross-examined. Witness bid himself at the sale, heard advertisement read; witness offered six hundred dollars.
    
      Captain Rose, sworn.
    Was employed by plaintiff to sail this vessel, has been three or four trips for freight to Beaufort, Blufftou and Whitehall; for about two months vessel was fully employed ; witness informed plaintiff she drew too much water, got ashore once or twice, was loaded ; got aground almost every trip, and was strained; vessel carried provisions from plaintiff’s in town, and brought back produce from the country.
    
      Cross-examined. All vessels are liable to get on sand and mud banks.
    
      In reply. Got on hard banks, vessel was much strained, witness refused to go in her any longer.
    
      Mr. B?'own, re-called.
    Vessel would be worth $75 a month on hire ; would clear about $200 a month in freight, clear of expenses.
    Here it was admitted, that a bill of sale under seal, for the vessel, had been duly executed by defendant, to the plaintiff, and delivered, without any warranty whatever, as to soundness, containing only the name of the vessel, without further description.
    Here the testimony was closed, and the case was argued fully to the jury.
    It appeared in my judgment, tobe a case almost exclusively for the jury, presenting for the most part mere questions of fact, and not involving, as it appeared by the argument of the counsel on either side, any nice distinctions as to the law. I charged the jury, that as the plaintiff’s action was founded upon an alleged warranty, it was necessary he should satisfy them by proof, first, that there was a warranty; secondly, that the warranty was broken; and thirdly, if any and what damages had been sustained by the plaintiff from the breach of it on the part of the defendant. The plaintiff relied mainly, if not altogether, at the trial, upon the printed advertisement of the sale of the vessel, as evidence of and containing the warranty upon which the sale was made. Upon this subject, I stated to the jury, that it did not necessarily follow, that where an article is advertised for sale, set out and described in very minute particulars, and with many recommendations, and a sale is subsequently made at public auction, at the time and in pursuance of the advertisement, especially where the purchaser has an opportunity to examine the article beforehand, that the terms in which the article is described in the advertisement, are therefore to be considered as entering into and raising a contract of warranty on the part of the seller, to the extent of the terms used in the advertisement. It seemed indisputable that the terms used in such an advertisement, would not apply to matters open to the inspection of the purchaser, whose examination of the article was invited, and in regard to which no fraud or concealment was practised, or alleged to have been practised, on the part of the seller. I submitted it as a fact, thereiore, for the jury to determine, whether the description of the vessel, contained in the advertisement, and to what extent, entered into and formed a part of the contract of sale, thus made at auction, and according to the understanding of the parties, was adopted, and became a warranty on the part of the seller. In this connection, I adverted to the fact admitted, by the plaintiff’s counsel, that a formal bill of sale under seal, which I regarded as the highest evidence of the contract, had been drawn oiit, executed and delivered by the defendant to the plaintiff, and accepted by him, in which there was no warranty whatever, as strong, if not conclusive, evidence to shew that no warranty was intended, and that none finally entered into the consummation of the contract of sale. Assuming, however, that there was at warranty in this case, either from the advertisement, or infer-rible from the price paid for the vessel, either as it respected her having been newly bottomed, or in other particulars, in which she was alleged to be deficient, I submitted to the jury, as a matter exclusively for them to determine, whether the evidence satisfied them that the warranty had been broken, and if so, to what extent, and what damages the plaintiff had sustained. Upon this part of the case, I directed the attention of the jury particularly to the testimony of Mr. Walter, who swore that the .plaintiff, after he had the vessel in his possession and use for a considerable time, told him “ that he wished to sell her, that the only fault he found was, that she drew too much water for his landing, and that he had no other objection to her,” as going to shew either that according to his understanding of the contract of sale, there was no warranty, or if there was, it had not been broken in any essential particular. All the facts in the case, as well as the question of damages, were left entirely to the jury, who found a verdict for the 'defendant.
    His Honor having reported the following additional matter, has directed it to be here placed as a
    NOTE.
    The testimony of William Bird; as stated in my report, contains all that I find in my notes of his evidence. I have, however, a strong impression on my mind, that in answer to some question, he stated that he had not communicated to Mr. Heyward the facts which he testified to, in relation to' the condition of the vessel, when she first came into his hands for graving in March ; and that, therefore, the knowledge of Mr. Heyward, in this respect, (as far as Mr. Bird was concerned,) was to be considered as inferrible from the payment of Mr. Bird’s bill, in which this item is supposed to be included. The time of the payment of this bill of Bird’s is not stated in the evidence.
    A motion to set aside the verdict, and for a new trial, was made in the Court of Appeals, on the following grounds:
    1. Because his Honor erred in charging the jury, that the advertisement under which the sale of the sloop was made, was no warranty of her condition at the' time of sale ; and that the maxim simplex commendatio non obligate had application to the circumstances of this case.
    2. Because the advertisement amounted to a special agreement to sell a vessel in a certain condition, with respect to certain named particulars, and the evidence shews that there was a material deviation from her condition as described in the advertisement.
    
      3. Because bis Honor ought to have charged the jury, that the advertisement of sale of the sloop was a warranty of the character and condition of the sloop when sold, and that tiie piajntiff was entitled to a verdict, if the testimony shewed a material deviation from, the warranty; which he omitted to do.
    4. Because the plaintiiF purchased the sloop at public auction, at its market value, a sound price, and was entitled to receive a sound commodity, or at least corresponding with the description given by the public advertisement of sale, under which the sale was made.
    5. Because the plaintiff proved beyond question, that the advertisement was drawn according to the direction of the defendant; that the vessel was sold per advertisement; that the plaintiff bought and paid the purchase money; that the sloop did not answer the warranty, inasmuch as she had not been new planked, bottomed, &c.; that the plaintiff did not discover it before the end of June, 1848; that he immediately tendered her back, and on the refusal of the defendant to take her, had her re-sold at his risk, and brought his suit for the loss, and was therefore entitled to a verdict. The proof being that it would have taken from two to three hundred dollars to have put her in the condition she was represented to have been in by the advertisement.
    6. Because the verdict is in other respects contrary to law and the evidence.
    
      H. Pinckney Walker, for the motion.
    
      JR. W. Seymour, contra.
   Curia, per Wardlaw, J.

This was an action of assump-sit on the contract, — not of case for a false representation. The representation that the sloop has just been .new planked, bottomed and additionally timbered,” which was contained in the advertisement, was a deliberate statement of matters as facts within the knowledge of the seller, which was well calculated to give confidence, and if it was false, the falsehood is not extenuated by any thing in the law concerning the simple commendation which a seller may give, or the bias which is indulged in mere matters of opinion. If nothing else but the subsequent inspection by the purchaser opposed, there should be no hesitation in holding the representation to be a warranty of the particulars represented, for very clear evidence that the purchaser did not at all rely on it would then be requisite to shew that it did not enter into the contract.

But the bill of sale, which contains a warranty of title and is silent as to the condition of the vessel, is said to shew, in writing, the agreement between the parties, and thus to exclude all warranty, or other stipulation not therein mentioned. ^ was decided, and relation to the sale of a ship, too, in Ponster v. Fobes. Our own case of Wood v. Ashe, whilst it admits, according to Wells v. Spears, that a bill of sale of a slave which contains only a warranty of title does not ex-elude the implied warranty of soundness, holds that where; the implication of warranty does not arise, such a bill of sale is evidence of the whole contract, and no express warranty of soundness can be added to it by parol. As to the implied warranty, our doctrine seems to be that notwithstanding a writing which contains a warranty of title only, the implied warranty, wherever it would arise if there was no writing, is tacitly annexed by the law as an incident of the agreement which the parties are presumed to have had in their contemplation. The case of Whitfield v. McLeod shews that the warranty of soundness of a ship, as of any other chattel, will be implied from a fair price, if the implication be not rebutted. If, then, the implied general warranty of soundness would serve the plaintiff’s case, to that he might resort; but the evidence shews clearly that if the plaintiff can recover at all he must recover upon a special express warranty, that the vessel was new bottomed. He says that the bill of sale was required by Act of Congress, to give to the vessel, in the hands of the purchaser, the privileges which pertain to a registered vessel owned by a citizen of the United States ; that it was intended to express one branch only and not the whole of the contract between the parties and that there is nothing in the law prohibiting the varying of a writing by parol, which forbids the establishment by parol of another branch of the contract, or of an independent collateral stipulation which no statute requires to be in writing.

Without here inquiring how far, in such a case as this, pa-rol evidence of a special warranty might be admitted without varying the terms of the written agreement, or contradicting the authority of Wood v. Ashe, it is sufficient to observe, first, that the presumption always is, in the absence of proof, that the parties to any written agreement between them have, on the subject matter, expressed their whole agreement - and second, that under the instructions which were given in this case, the jury may well be considered to have negatived the sufficiency of the evidence to rebut this presumption. Indeed the final view taken of the ease by the Recorder, seems to have left the jury at full liberty to find the special warranty, and assuming it, to proceed tó the questions of breach and damages. The long delay of complaint on the part of the plaintiff, the opportunities which with suitable diligence he might have enjoyed of soon discovering the defect now complained of, his expressions of satisfaction with every thing but the draft of the vessel, his serviceable use of her, and her great deterioration before the re-sale, seem in any view to justify the verdict.

The motion is dismissed.

Evans and Frost, JJ. concurred.

Motion refused.  