
    E. R. Wilson v. Alexander Ferguson
    A warranty of soundness given after tbe completion of a sale, being under seal, could not be impeached for want of consideration.
    Some months after sale, the purchaser told the seller “he wished to give up the negroes on account of unsoundness,” (the negroes not being present.) This was no sufficient tender to rescind the bargain and entitle the buyer to the whole purchase money as damages.
    A swelling in the abdomen of a negro woman, plainly visible, and known to the purchaser, it seems was no exception to the general scope of an express warranty of soundness ; though no ill consequences were shown from the malformation, and the woman did full work.
    Before O’Neall, J., at Darlington, Spring Term, 1840.
    Covenant on an express warranty, under seal, of the soundness of a negro woman. The purchaser, at first, took a hill of sale with only the usual warranty of title; but, a short time after, being so advised by counsel, he demanded an express warranty of soundness. The seller reluctantly executed that on which this action is brought.
    The objection to the woman was an enlargement of the abdomen. It was observed at the time of sale by a physician, who examined her, at the plaintiff’s request, and advised him not to make the trade. The opinion of witnesses was, that her value was materially impaired by this affection; but she did her full work. Two physicians, examined, said, it was not disease, but an unnatural state of the abdomen, and might be considered a physical defect. The plaintiff gave for the woman, with a sound child, seven hundred and fifty dollars, which was rather below the current price for sound property.
    Some months after the purchase, plaintiff told defendant that he wished to give up the negroes on account of unsoundness. The latter replied that he was long in finding that out. The negroes were not then present.
    The jury were instructed that the express warranty covered defects known to the buyer, as well as unknown, unless so obvious to the senses that no skill was needed to detect them, but that, in this case, the express warranty having no other consideration but the pre-existing implied one, was only a substitute for that: that there was no tender of the slaves to constitute a rescinding of the contract, and that they could therefore find for the plaintiff no more than the difference between the value and the price given, with interest from the sale. Yerdict, fifty dollars.
    The plaintiff moved for a new trial on the following grounds:
    That his warranty did embrace all defects, as well known as unknown.
    That, having tendered back the slaves, he was entitled to the whole purchase Inoney, if to any thing.
    
      That the verdict was not commensurate with the unsoundness proved.
   Curia, per Evans, J.

This case, in most of its features, is like the case of Stucky v. Clyburn. In that case, I took occasion to express my opinion of the nature and extent of an express written contract of soundness, and how far it would be affected by defects known to the buyer at the time. I do not perceive any thing in the charge, as reported, at variance with the principles there laid down. It is stated in the report, that the “jury were told, that generally, when there is an express warranty, it would be Avholly immaterial whether the defect Avas made known to the buyer, or whether the property was examined for him by a physician; for the purchaser then, Avould have the right to stand on the express warranty, and would be entitled to recover, notwithstanding such proof. It is clear, the Circuit Court did not consider the enlarged abdomen of the woman as one of those defects that are plain and obvious to the senses, and requires no skill to detect them. Her appearance was at least equivocal; it might be disease, or it might be that which would be removed in the ordinary course of nature, and whether it was the one or the other, could be ascertained only by a minute examination and more knowledge of the subject than purchasers generally possess.

It is said, (in Chitty on Contracts, 361,) that a warranty, after the sale was complete, or the contract was performed, would not seem to be binding for want of consideration.” This is because the agreement to Avarrant is gratuitous merely, and not founded on any consideration passing between the parties at the time. And if the contract in this case had been parol, this would have been the case, but no contract under seal is open to the objection that it is nudum pactum. And I cannot doubt that this distinction was not present to the mind of the presiding Judge, when he told the jury that the subsequent express warranty ought to be considered as a substitute for the implied one, “ and then, if the purchaser was fully informed as to the condition of the property by the physician, (Dr. Dargan,) he ought not to recover.” The jury did not find this fact to exist, for their verdict is inconsistent with it, and it is noticed here only because, as the case may be reported, other persons may be misled by the supposition, that it had received the sanction of this Court.

Dargan, for the motion;

Sims, contra.

The only remaining points in the case, are those that relate to the damages. The plaintiff contends that, as he offered to return the negro, he was entitled to recover back the whole purchase money. We concur with the presiding Judge: .there was no sufficient tender of the slave to justify a recision of the contract. And besides, the plaintiff’s action is on the covenant, and he claims damages for a breach. There have been cases, where the whole amount of the purchase money has been recovered in an action on the warranty, but then it was because the property was utterly worthless, and damages were sustained to the full amount of the money paid. Until the contract is rescinded, or the buyer has tendered it back in reasonable time, which is equivalent to recision if he had a right to do so, no action .for money had and received will lie until this is done ; the plaintiff’s remedy is on the warranty, and his damages must be regulated by the injury he has sustained. Of this the jury were the judges; and it seems to me, that on "a question of this sort, with all the facts before them, the opinion of the jury on the amount of damage sustained is entitled to as much respect, and is as apt to be right, as the opinion of the witnesses. The motion is dismissed,

Richardson, Earle and Butler, JJ., concurred. 
      
      
        Ante 186. An.
      
     
      
      
         11 Rich. 132. An.
      
     
      
       2 Rich. 46 ; 2 N. & McC. 45 ; 2 Mill's R. 75; 2 Brev. 304. An.
      
     