
    Robert M. Venning v. Thomas J. Gantt.
    The purchaser of a negro had notice of his having a shortness of breath, which was attributed to a severe fall. It turned out, afterwards, that his lungs must have been dangerously diseased at the time of sale ; though there was no appearance of unfairness or concealment. Held, that there was not sufficient notice to relieve the vendor for a sound price from his implied warranty.
    The sufficiency of notice of unsoundness, where it is equivocal, is a point for the jury to determine.
    Before the Honorable Recorder of the City Court of Charleston, January, 1840.
    This was an action of assumpsit on an implied warranty of soundness, to recover the value of a negro named Philander, who was, with some others, sold by the defendant, through Thomas Gadsden, to the plaintiff, on March 9,1839, and died soon after.
    The plaintiff was fully informed that Philander had a shortness of breath, supposed to have been occasioned by a fall from a house not long previous. It was remarked by several witnesses that he looked quite sick on the day of sale, and, by one who had known him before, that he had fallen off very much. But it did not appear that there was then any swelling of the abdomen, or other symptom, besides those already mentioned, either of dropsy or of diseased lungs. Mr. Gadsden, who effected the sale, said he did not observe or know of any.. Immediately.after the sale, on a raw, cold day, the negro was exposed to the weather in crossing the river to the plaintiff’s premises. The next day his legs and abdomen were obviously swollen, and he could not walk a hundred yards. On the 11. th, Dr. Bailey was called'in. Being sworn,' he described Philander’s symptoms: considered his malady a complication of (liseased lungs and dropsy; thought it was of long standing and incurable, and could not have originated between that time and the 7th, though exposure to the weather then might have aggravated it. Dr. Ogier, sworn, thought that the symptoms described by Dr. Bailey, except the swelling, indicated pnewfnonia, a disease prevalent at that time, and often of sudden occurrence, which might have been occasioned by the fall, or by exposure: but neither this disease nor these causes could account for. extensive swelling of the abdomen and legs.
    Gadsden sent his clerk to the defendant after the sale, to inquire if he should insert in the bill of sale a warranty of soundness: defendant directed him not to do so. It did not appear whether this was done with the privity of the plaintiff or not; but it was Gadsden’s general practice to apply, of his own accord, to the vendor for instructions in this particular.
    “I charged the jury,” said his Honor, “that a sound price warranted a sound commodity; but that a Warranty of soundness could not be implied, when there was a refusal at the time of sale to warrant. Whether Venning, by himself or agent, required a warranty from Gantt, which he refused, I submitted to the jury, on the following testimony: Gadsden was the agent of both parties; after the sale, and before the delivery, he sent Spencer, his clerk, to ask Gantt if he should insert a warranty of soundness, and Gantt refused; that Venning conld not be considered as waiving bis implied warranty, unless he knew that Gantt refused to warrant. That if they came to the conclusion that the implied warranty was not negatived, then the next question I submitted to them was, did the price warrant the soundness; if so, then I charged them, that it could not be considered a warranty against the fall and its consequences, because plaintiff bought with a full knowledge of that. That if they believed the negro died from the fall, or its effects, the plaintiff was not entitled to recover; but if he died from another disease not connected with the fall, existing at the time of sale, he was entitled to recover.”
    Verdict for the plaintiff. Defendant appealed,
    Because he had expressly refused to warrant the negro; and,
    Because the plaintiff had sufficient notice of the unsoundness.
   Curia, per Richardson, J.

Considerable efforts have been made to bring this case within the established exception to the general rule, that a sound price warrants sound property; by reason of notice to the purchaser. It was submitted with full and clear instruction by the Court, and the verdict verifies these facts: That a sound price was paid for Philander, that there was an implied warranty of soundness, and that Philander died of a disease disconnected with the fall; to which disease the implied warranty extended.' Do the facts, then, and the law of the case, warrant the inference that the jury have been mistaken 'i The notice received that the negro had sustained a fall, to which his short breathing was ascribed, was scarcely a reasonable intimation that such short breathing might arise from some fatal malady, so as to put Venning on his guard. Such notice, coupled with the supposed accidental cause, might rather detract from his suspicion, that it had a more permanent and fatal source in some disease unknown to the seller or purchaser.

This case is very unlike that of Vance v. Witliams, (Dudley R. 97.) There, notice of the danger was given, and the reason assigned for apprehension of the very disease which caused the negro’s death. Nor is it like the case of Lyles v. Bass, (supra, p. 85,) decided at this term. Bass bought at a sound price, but, as he expressed it, on his own look out, after explicit notice that she ,was very sickly. These two cases plainly illustrate the reason of the exceptions to the rule, that a sound price warrants sound property. The exception has place where the purchaser has been fairly put upon his guard, so as to make the consequences that follow his own risk. This being the essential ground of the de-fence in the case before us, can' we infer that the jury were mistaken in concluding that the notice to Vénning was not sufficient % Could notice of an affection ascribed to an accidental cause put any but a very suspicious mind on its- guard against chronic, constitutional disease 1 Besides the vendor’s total ignorance of. Philander having dropsy, or disease of the lungs, renders it the more probable that the plaintiff was not set upon his guard against them. They were unsuspected.; and the short breathing of the negro was attributed to the fall.

It may be justly added, too, that the notice to Venning being equivocal, whether it was sufficient to put him on his guard generally, is necessarily a part of the case decided by the jury.' And they have, by their verdict, negatived the inference of fair notice to Venning, which was essential to the defence.

Upon the whole case, then, the Court considers it well submitted to the jury, and legally disposed of, by the proper tribunal, under the now well established doctrine of Timrod v. Shoolbred, (1 Bay R. 324.)

Motion dismissed;. Earle and Butler, JJ., concurring.

See, ante, 85. 1 Rich. 405, 51. 1 Sp. 319. An.

Bentham and Hunt, for the motion;

Yeadon, contra.

O’Neall, J.

I dissent, on the ground that, where there is a refusal to warrant, or where a defect is pointed out, or known, there is no implied warranty; and, to entitle the plaintiff to recover, there must have been an express warranty of the negro, or other chattel sold, in all other respects; or a deceit proved.  