
    
      Simon Verdier vs. James Trowell.
    
    Verdict for plaintiff, in an action on tho implied warranty of the soundness of a negro, for only nominal damages, sot aside, on plaintiff’s motion, as plainly against evidence, and new trial ordered.
    
      Before Evans, J., at Beaufort, Spring Term, 1862.
    The report of his Honor, the presiding Judge, is as follows :
    “ This was an action of assumpsit on the implied warranty of the soundness of a negro man named Henderson. The bill of sale, dated 10th of June, 1848, expressed a consideration of 500 dollars, and contained a warranty of title but not of soundness. The negro at the time of the sale was apparently healthy; he was a notorious runaway, and had just been taken out of the jail at Walterborough at the time of the sale. Within a day or so of the time of the sale, the defendant offered him to one Sanders, who was pleased with him and would have given 600 dollars, but had not the money. Defendant told Sanders that he was a notorious runaway, and that if he would stay with him he would not take $ 1000 for him.
    “ Dr. Fishburne — Examined the negro in January, 1850; he had tumors on his back, several of which were discharging matter, and were the effect of burns. He was bodily Unsound, and his value impaired one-half. The tumors were so large that he could not lie down without difficulty. Recent ulcers of the kind may, by neglect, exhibit the appearance of those of long standing, but this was not the character of this case. When he saw him he had irons off his feet, and had been recently taken as a runaway.
    “ Dr. North — Examined the negro ten or fifteen days after the sale. He had large fleshy excrescences on his back; they did not discharge, but was satisfied they would, and were incurable ; they were the effect of previous burns. He was decidedly unsound at the time of the sale, and his value is impaired 75 per cent., and he would not have him at any price.
    “ Josiah Beck — Saw the negro soon after plaintiff bought him; five hundred dollars was a full price, if sound. There was only one tumor as large as a hand when he first saw him; this was the same time Dr. North saw him ; saw him again last Sunday ; there were large tumors extending from his shoulders to his hip, which were discharging; saw what appeared to be shot holes healed up near the tumors.
    DEFENCE.
    “ L. J. Witsell — Was overseer for Verdierfrom July, 1850, to 1st January, 1852 ; Henderson was under his charge ; in very warm weather the negro complained several times, and the witness examined the lumps on his back ; there were several on his back and about his neck, which appeared like large moles; the negro usually wore a flannel shirt, and these lumps were inflamed by the friction of the flannel whenever they came in contact with it, those not touched by the flannel were never inflamed to his knowledge. Can’t say if they affected his health, which was generally good. They did not lessen his strength, but lessened his value for work in consequence of the inflammation arising from the friction of the flannel. He did not lie up in bed in 1851, but was prevented from doing his daily work.
    “ J. H. Thames — Was with Trowell when he got the negro in Charleston, from a broker. He gave for him a negro woman worth §500 and 25 or 50 dollars. The negro was stripped and examined. There was a lump on his shoulder of the size of a quarter of a dollar. This was in 1847. The negro went with him afterwards to Charleston. He was very strong and active and made no complaint. Never heard of his being sick whilst Trowell owned him. If he was not a runaway his value would be §800.
    
      ‘‘ M. A. Riley — Lives near' Trowell; saw the negro frequently at work; he was a good hand ; never sick but once, and then of an affection of the bowels. He was able-bodied and worth §600. Saw a lump on the neck an inch and three-quarters of an inch wide. The negro said it was caused by a burn.
    “ T. A. Riley — Knew the negro in 1847 and 1848. From the time Trowell brought him home thought him able-bodied, strong and active. He was cheap at f>700 to speculate on. He would now bring $800. Heard of the lumps from Trowell but did not see them.
    
      “ I A. Johnson — Lived with Trowell in 1848. Henderson was under his charge. He ranaway several times. Had charge of him two or three months. He never complained, was healthy and active. He was worth 600 or 700 dollars. Has seen the lump on his neck, shoulders and back. They did not affect his value. There were three lumps.
    
      “ The purchase was made in June, 1848. The action was commenced in October, 1849. There was no tender or offer to rescind. The parties lived one in Colleton and the other in Beaufort, some distance apart, but how far, was not stated. I charged the jury on the law of the case, (to which there was no exception,) commenting on the fact that there was no warranty of soundness in the bill of sale, and that there had been no offer to rescind, and left the jury to decide on the following propositions:
    
      “ 1. Was the price paid a full one ? If so the law implied a warranty.
    “ 2. Was the negro unsound at the time of the sale ?
    “ If they found these facts in favor of the plaintiff he was entitled to recover as much as the value of the negro was impaired by reason of the unsoundness. They rendered a verdict for the plaintiff for one dollar, after an absence of one or two hours,”
    The plaintiff appealed and now moved this Court for a new trial,
    1. Because the jury by finding for the plaintiff, having established the warranty in the sale and the unsoundness of the negro, was not at liberty to give nominal damages merely.
    2. Because the verdict was otherwise inconsistent with itself and contrary to law and the evidence.
    
      Carlos Tracy, for the motion.
    The jury having found for the plaintiff were bound to give damages to the extent plaintiff had suffered. The verdict is conclusive, that there was a warranty and of the unsoundness; and it follows, ex debito justicia}, that the plaintiff is entitled to recover to the amount of the damages sustained by him. He cited Wallace vs. Frazier, 2 N. &• McC. 516 ; Colcock vs. Goode Rose, 3 McC. 517 ; State vs. Bowen, 4 McC. 156 ; 2 Sp. 255 ; English vs. Clery, 3 Hill, 282.
   The opinion of the Court was delivered by

Glover, J.

In this case, there was no offer to rescind the contract and the plaintiff can claim to recover only for such deterioration in value as arose from the unsoundness of the slave. When a full price is paid, a warranty of soundness is implied, and if the property be unsound, at the time of the sale, the difference between the price paid and the value of the property, impaired by reason of the unsoundness, should be the measure of damages. The attention of the jury was called to these familiar and well-settled principles of law by the Circuit Judge, and the evidence presented a case to which they were directly applicable.

The unsoundness of the slave, at^the time of the sale, rvas conclusively established, and the testimony authorizes the belief that a full price was paid. The estimated price which the defendant paid in the Charleston market was about the amount for which the plaintiff purchased, and a verdict in his favor justifies the conclusion that the jury were satisfied on these two points. The only question left for their consideration and decision was, the extent of depreciation in value, arising from the unsoundness. The jury have estimated this at one dollar.

A difference of opinion expressed by the witnesses, will necessarily allow some latitude in ascertaining, both the extent of the injury, and the amount of damages which should be given to indemnify the purchaser.

The professional opinions of Drs. North and Fishburne are entitled to great consideration in forming a judgment, as well respecting the nature of the disease, as the extent to which it might affect the value of the slave. They saw him at different periods, and were of opinion that his value was impaired from 50 to 75 per cent. Some of the defendant’s witnesses speak of him as able-bodied, but all of them admit the existence of the tumors which, in the opinion of Dr. North, are incurable, and which the defendant’s overseer said prevented the performance of his daily work. The amount found for the plaintiff will not compensate him for the loss which it was shown by the evidence he had sustained. We will not say with the Court in the case of English vs. Clery, (B Hill, 279,) that the finding of nominal damages for the plaintiff is matter “ of grave rebuke but the estimate of his damages is so plainly against the evidence, that it is calculated to create some surprise, and the plaintiff’ should be allowed to submit his case to another jury.

The motion for a new trial is granted.

O’Neall, FRost, Withers and Whither, JJ., concurred.

Wardlaw, J., absent at the argument.

Motion granted.  