
    William Stucky v. James Clyburn.
    An express warranty of soundness, in the bill of sale of a negro, precluded the implication of warranty of other representations on the same paper; as, that the negro was forty years old.
    A written warranty cannot be limited by parol evidence, (as, of the purchaser’s knowledge of a defect,) unless unintelligible without it.
    A hernia, known to the buyer of a negro, was not one of those “ defects that are plain and obvious to the senses of the purchaser, and required no skill to detect them,” and which are not covered by an express warranty of soundness.
    As to such obvious defects as are excepted from the scope of an express warranty, “I should rather conclude that the defects mentioned are exempted from the warranty, not because they are obvious to the purchaser’s senses, but because they are not cases of unsoundness.” — Evans, J.
    
    Before O’Neall, J., at Kershaw, Spring Term, 1840.
    Assumpsit on the warranty of a negro man, Ned, sold by defendant to the plaintiff. The bill of sale was in consideration of seven hundred dollars, described Ned as about forty years of age, and warranted him sound in body and mind.
    Evidence was offered to show that Ned was much beyond forty, probably between sixty and seventy years old; but it was not admitted by the presiding Judge, who considered that part of the bill of sale (Abe mere description, and that the express warranty of soundness, precluded the implication of any other.
    It appeared that the negro was ruptured at the time of the sale, and was worth, then, from two hundred to four hundred dollars; and that he died about a year after. The jury were instructed “ that, if the rupture was so apparent that it must have been seen and known by the plaintiff, then the warranty would not cover it, and their verdict ought to be for the defendant. If, however, it was not, that then the plaintiff was entitled to recover the difference of the value of the negro in his unsound condition, and the price paid for him.” Verdict for the plaintiff, twelve dollars.
    The defendant moved the Court of Appeals for a new trial, on the ground that evidence of the negro’s age had been improperly excluded; and also, that the verdict ought to have been either for the defendant, or for such a sum in behalf of the plaintiff, as the evidence proved the negro to have been depreciated by reason of the unsoundness.
   Curia, per Evans, J.

On the first ground, I agree with the presiding judge, that the age of the negro, as set forth in the bill of sale, is mere description. It is not unsoundness, and the warranty that the negro was sound in body and mind, precluded the implication that anything else was intended to be warranted. (Chitty on Con. 359; 1 Bing. 324.) The rule in relation to implied warranties is, that they do not extend to defects known to the buyer, and that no implication of warranty can arise, where the defect was obvious to the senses: because such defects were, or should have been, known to him. A different rule, however, must govern in relation to express warranties, and especially those that are written; because the contract is to be construed most strongly against the warrantor, and because, for anything we can know, the warranty whs given expressly to cover the existing, known unsoundness. Besides, a written contract can neither be enlarged nor limited by parol; and to admit evidence that the disease was obvious to the senses, and from hence to infer that the buyer knew of its existence, and consequently, that it is not included in the warranty as understood by the parties at the time, is in no respect different from the admission of parol evidence of an- agreement between the parties, that the seller was not to warrant against the defect complained of. In the one case, the general words of the warranty are limited by an inference from, the facts; in the other, they are controlled by the parol agreement of the parties; and in both cases the contract is altered, and effect given to it different from its obvious meaning on its face. There are cases in which the facts and circumstances connected with the contract at its creation may be resorted to as a means of interpretation. But they are those where, without it, the contract would be wholly inoperative, because it was unintelligible. Of this description is the case of Collins v. Lemasters & Lee, (2 Bailey R. 141.) The general rule is, that a contract in writing is to be interpreted by itself, and especially if it has, on the face of it, a plain and intelligible meaning.

I have thought it necessary to say this much on the subject of express written warranty, because, it seems from the report, the presiding judge charged the jury that, if the rup-tura was so apparent that it must have been seen and known by the plaintiff, then the warranty did not cover it. It seems to have been supposed that this case came within the reasons of the principles stated in Wallace v. Frazier, (2 N. & M’C. R. 517.) The rule, as stated in that case, (and the same is to be found in Chitty on Contracts,) is, that a general warranty “ will not extend to guard against defects that are plain and obvious to the senses of the purchaser, and require no skill to detect themand the cases stated are the loss of an arm, a leg, or an eye. It does not seem to me that the fact of the buyer’s knowledge does, per se, exclude the case from the warranty; for in the case of Wallace v. Frazier, it was clear, the disease, was known to the purchaser when he bought, and yet the Court held the vendor bound by the warranty. I should rather conclude that the defects mentioned are exempted from the warranty, not because they are obvious to the purchaser’s senses, but because they are not cases of unsoundness. We do not understand, either in legal or common parlance, that a negro is unsound because he wants a leg, or an arm, or a horse because he wants a tail; although the capacity of the negro for work, and the beauty of the horse are both greatly diminished by the deficiency. But, whatever may be the reasons for excluding these cases from the warranty, they do not apply to a clear case of disease.

It is said, (in Chitty on Contracts, 368,) that unsoundness in a horse is any “ organic defect, any infirmity which renders it unfit for use and convenience;” and the same definition, as to physical unsoundness, will apply as well to a negro as to a horse. The disease alleged in this case, was a rupture, or what is called hernia. It is frequently very obvious, but its effects on the value of the negro, it requires skill and knowledge to ascertain. Sometimes it is of no little injury to him, in other cases he is rendered wholly worthless. It is not a defect that it requires “ no skill to detect.” In many cases no skill, or science can ascertain its effects fully; they are developed by time alone. It seems to me that this case is unlike the loss of a leg, or arm, and that it cannot be excluded from the general warranty against unsoundness, unless we adopt the broad principle that the purchaser’s knowledge of the existence of the defect, shall, in all cases exempt the seller from liability on his warranty in cases of express, as well as of implied warranty. For such a principle there is neither argument, nor authority.

For these reasons, it would seem that that part of the charge hereinbefore quoted was error, and, if the jury had found for the defendant, I should think a new trial should be ordered. But, as the jury found for the plaintiff, the error could not have had any influence on their verdict.

Withers, for the motion;

J. M. De iSaussure, contra.

The contract of warranty is an undertaking to indemnify for any injury sustained by the breach of it. What the damages were, it is not easy to gather from the testimony. None of the witnesses express any opinion of the extent to which the value of the negro was diminished by the disease. They say the price was much beyond his value; and it probably was so, even if he had been sound. Diminution of value by reason of a disease is, at best, but opinion, and with all the facts before them, the jury were as competent to form an opinion as the witnesses. We cannot, therefore, say that the jury have found less than 'the injury sustained by the plaintiff.

Motion dismissed; Richardson, Earle and Butler, JX, concurring. 
      
       2 McM. 332. An.
      
     
      
       1 Strob. 407. An.
      
     
      
       See 3 Strob. 84; 11 Rich. 15. An.
      
     