
    Charleston, January Term, 1812.
    Robert Limehouse vs. William Gray.
    Drayton, for the Motion,
    
    Northrop, Contra.
    
    . The a«c-advertise-ferentftom and terms of srIc parol évi-b^íecThí ed to warranty ness or va-edbythe" advertise-
    where aukethne jjjce that was not andtL aPPeal; the slave thewant °5^1ue|11ith; there no proof ot notice to the purchaser himself, and a fair price was paid, and she died of a disease with which she was then affected — Held by the Court (Col-cock, J. dissenting) that the purchaser could not recover against the. vendor, for unsoundness.
    This was an action to recover the price of a young female slave, upon the ground of a failure in the warranty of soundness. The plaintiff produced the advertisement, under which this slave, together with several others, was advertised to be sold, all of ' whom were described as prime negroes. A day or two elapsed between the sale of the slave, and her delivery to the plaintiff: during which time she was under the care of a person who usually attended to negroes, and to whom a reasonable compensation for that purpose was paid. When brought to the plaintiff’s house, she was sick of a disorder which, a physician, called by the plaintiff, proved, was her system when sold, and was the cause of her death. The price given was as much as a sound negro of the age, appearance and qualities of the one purchased, usually sold for, at the time she was sold, The defendant produced two or three witnesses, to establish that it was declared at the sale, that the purchaser bought subject to every defect excepting that of title; that, at the sale, the appearance of the girl indicated unhealthiness, consequently, that there wag no breach of warranty, either express or ini'-plied, on the part of the defendant. The plaintiff objected to any testimony being adduced to contra-the advertisement, and upon this objection being over-ruled, he contended, admitting the declarations made at the sale by the vendue-master, yet the advertisement having stated that the slave was a prime negro, it was requisite that the notice should have been specially communicated to the plaintiff, that he bought subject to defects ; whereas no notice of this kind was proved, and all the witnesses examined by the defendant, said that they never heard the vendue-master make any declarations respecting the risks which the purchaser was to run. The plaintiff also contended that having given a fair price, he was entitled to a sound commodity in exchange.
    The jury found a verdict for the defendant. A motion to set aside the verdict, and for a new trial, was made on the following grounds : 1st, Because his honour the Judge over-ruled the plaintiff’s objection to the admissibility of parol evidence to contradict a written advertisement: 2nd, Because the verdict was contrary to the weight of evidence.
    Colcock, J. As to the first ground in this case, I think it was perfectly correct to admit parol evidence to do away the effect which, it was contended, should be produced by the advertisement. For I will suppose, that it could have been proved, that the negro in question was not included in the advertisement; that the vendue-master had not the possession of her until the sale, and that she did not belong to the same person who owned those alluded to in the advertisement. It would certainly have been unjust to attach, in this way, an express warranty to property which it was never the interntion of the vendor to warrant.
    As to the second ground, after the most deliberate consideration of the case, I see nothing which distinguishes it from a number of cases, decided on the same principles in our courts, and particularly the case of Timrod vs. Shoolbred, 1st Bay, 324. in which it was decided that, when the seeds of the disorder were proved to have existed at the time of the sale, and the negro afterwards died of that disorder, the vendor should be liable.
    But it was contended, that the negro had the appearance of unhealthiness at the time of the sale, and that where defects are visible, the law will not relieve. Of this I am fully aware, but by an examination of the cases decided on this ground, it will be found that such defects are meant as are obvious to a common observer. ■ Now I presume there is no criterion more fallacious than the appearance of people of this description, and that it requires a great degree of skill to judge by the face of a person whether he is labouring under disease, and particularly whether under a disease of an incurable nature. The cases where the purchaser is required to see for himself are such as wThere a horse has lost an eye or eyes, a defect visible and obvious, and which cannot be said to bear any analogy to the de-feet in this case. In the case of Timrod vs. Shoolbred, before mentioned, the language of the court is, that “ this warranty,” (the implied warranty arising from a sound price) “extends to all faults, known and “ unknown-to the seller; and although, in general, it “ principally relates to title and qualification, and not to longevity, yet, in some cases, it ought to be “ construed to extend to the latter. For if the ne- “ gro sold had about him, at the time of sale, the “ seed of a disorder generally difficult of cure, and “ which occasioned his death, it would be unreason- “ able to say that the purchaser shall sustain the “ loss.” In this case, it was proved that the negro was affected by the disorder of which she died, at the time of the sale.
    I have said thus much on the ground of implied warranty, because, it was contended that, although she was advertised as “ prime,” that expression by general consent in this country, did not carry any warranty as to soundness. But this is beyond my powers of comprehension, for, the word must apply to qualification alone; and I am inclined to think, if the vendue-master had expressly said, he offered a prime wench, but very sickly, for sale, he would have had very few bidders. I conceive that there was an express warranty, and, in such cases the law is cleax*, that the purchaser need not use any uncommon diligence to ascertain whether the warranty is correct. I am, therefore, of opinion, a new trial should be granted.
   Brevard, J.

Id this case, my opinion is, that the motion ought to he rejected; and for the reasons following : The advertisement of the defendant, that at such a place, on such a day, he would expose for sale, a number of prime negro slaves, I consider in the light of a notice to persons wishing to purchase slaves in order to attract bidders, and not as intending to hold out the terms or conditions of the proposed sale. I cannot believe the defendant intended by his advertisement to warrant the soundness of every slave, to be sold on the day, and at the place mentioned; and that every such slave should answer the description given in the advertisement of the whole gang collectively; I cannot believe the advertisement was so understood by any purchaser at the sale. It is not reasonable to suppose the defendant meant, by his advertisement to preclude himself from selling any but such slaves as should answer the desciiption of prime slaves, upon such terms and conditions as he might fairly propose and agree to, verbally or otherwise, at the time of sale; or that every purchaser at the sale, could understand the advertisement in any other light than that of a mere notice, that prime slaves would be offered for sale upon such terms and conditions, as should be declared at the time and place of sale. A slave in everv respect prime, at the time of advertising, might become unsound or materially defective before the day of sale; yet can it be seriously pretended that the defendant was estopped by his advertisement from selling him, at the time and place proposed, upon such terms as might be fairly de-clai’ecl at the time of selling? The case of Gunnis and others vs. Erhart, 1 H. Black. Rep. 289. is very different from the present. In that case, the printed conditions of the sale stated, that the copy-hold estate offered for sale was free from all incum-brances. This was a false representation, made at the time of the sale, and the purchaser at the sale relied upon it, and was deceived. Parol evidence •was indeed offered, to prove that the auctioneer had publicly declared, when the estate was put up, that it was charged with the incumbrance to which it was subject, which the court refused to admit; but it was refused on the ground that verbal declarations at an auction, contrary to the printed conditions of sale could not be admitted without opening a door to fraud; and there was no evidence that the purchaser had particular personal information of the inheritance in question.

In the present case, the testimony of two or three witnesses was given in evidence, to prove that it was expressly declared at the sale, that the buyer was to run the risk of unsoundness, and of every defect save that of title, and that the appearance of the slave in question, indicated unsoundness. This evidence was objected to, upon the authority or reason of the case of Gunnis vs. Erhart, which I have already noticed, and which appears to me very distinguishable from this case. I am of opinion that, in cases like the present, the advertisement of sale is never intended to state the conditions of sale; but that the conditions are to be made known at the time of sale, unless otherwise plainly and clearly ex- ' * k J J pressed; and that it is not necessary to prove particular and personal notice to the purchaser, of the conditions declared at the sale; it is always to be presumed that he has had notice.

In the view I have taken of this case, with all its circumstances, it appears to me that the evidence given at the trial was properly admitted, and was fairly left to the jury : and I do not feel authorised, from the impressions made on my mind by the evidence stated and commented on, to say that the verdict is not supported by sufficient evidence.

Gbimke, J.

A new tidal is moved for in this ease, because parol evidence was admitted by the judge to contradict an advertisement in which the negroes to be sold were described to be prime; but the defendant proved that when the wench was put up for sale, she appeared emaciated, that it was visible to the eye of every one, that she was diseased^ and that, therefore, unless there was an express warranty of soundness, notwithstanding and in com tradiction to the sickly appearance of the wench, plaintiff could not recover. He also proved that at the sale, it was declared, that nothing but the title would be warranted ; but he did not bring home to the plaintiff, the hearing of this declaration.

The plaintiff now alledges that such evidence ought not to have been received j and quotes a case from jj Black. 289. where an advertisement declared that a certain tenement, which was for sale, was free from incumbrance. But though it did appear, that the plaintiffs could have proved, that a counter declaration to the advertisement was made at the time of sale, as in this case, yet there was no proof that the declaration had come to the ears of the purchaser, or that he could have been, by any thing which happened at the sale, put on his guard, or been informed of the circumstance. This case then does not tally with the one before us ; for here the very sight of the wcneh was sufficiently indicative of a very bad state of health ; and the law lays it down, that there is a class of cases where, though a man is deceived, he can maintain no action: as where the affirmation is, that the thing sold has not a defect, which is a visible one, there the imposition, the fraudulent intent is admitted, but it is no tort. 3d D. & E. 54. We are, therefore, of opinion that no new trial should be granted.

The other Judges concurred.  