
    McKinney v. Fort.
    where a slave dies a short time after sale, it is necessary, in an action on the warranty, to prove not only that he was unsound at the time of the sale, but also that the unsoundness then existing was the occasion of his death. (Note so.)
    Where the plaintiff offered to prove a custom in Bowie county, “ that when a man sold a negro, “he gave a bill of sale of the same, warranting the title, soundness and sense of the same, in “the absence of an express contract to the contrary:” Held, That the testimony was properly rejected.
    The rule at common law now appears to be that the purchaser buys (a slave) at his own risk, '(as to soundness,) unless the seller give either an express warranty, or unless the law implies a warranty from tho circumstances of the case, or the nature of tho thing sold, or unless the seller be guilty of a fraudulent concealment or representation in respect to a material inducement to tile sale. (Note 40.)
    A fair price implies a warranty of title, but not, unless under special circumstances, a warranty of soundness.
    It may be laid down as a rule condensed from the authorities, that if the defect in the article be equally open to tho observation of both parties; if the means of information be equally accessible to both; if neither says or does anything tending to impose upon the other, and if tho one in possession of the material facts, knowing tho other to be ignorant of them, be under no special obligation by confidence reposed, or otherwise, to communicate them fully and fairly, then the disclosure of this superior knowledge as to facts affecting the value of the commodity is not requisite to the validity of the sale.
    See this ease for circumstances under which the sale of an unsound slave for a sound price, without oxpross warranty, was sustained.
    A bill of sale is not essential to vest the title to a slave in a vendee,
    
      Where there was a verbal agreement for the exchange of a slave for a certain quantity of cotton, the slave to be at the risk of tho owner of the cotton, and the cotton to be at the risk of tho owner of the slave from tho timo of the agreement, and tho slave and cotton were both delivered in pursuance of the agreement, the owner of the slave promising to make a bill of sale of the negro at the next term of the District Court; the bill of sale was not made, and the slave died: Held, that the property in the slave passed at the time of’the delivery, or rather, under the facts of this case, the property, on payment of the consideration, attached to the purchase.
    See this case for an instance in which there was a question whether fraud was alleged or not.
    Where fraud is not alleged, it is proper for the court to charge the jury that “no evidence of “fraud can be taken into consideration” by them, notwithstanding the evidence may have been admitted without objection. (Noto 41.)
    Appeal from Bowie. The plaintiff, McKinney, in December, 1846, purchased from Fort, the defendant, for thirteen thousand pounds of ginned cotton, which he delivered, a negro man named Washington, who died iu the following month of May. This action was brought for the recovery of the purchase-money or the value of tho consideration,bn the ground substantially that the slave was unsound at the time of the sale. Tho petition contained several counts, one of which was ¡is follows : “And tiie said McKinney further states that in consideration that yonr petitioner would deliver tiie said Fort other thirteen thou- “ sand pounds of ginned and baled cotton at McKinney’s gin, in Bowie county, “ on the ■ — - day of December, 1810, lie, the said Fort, agreed that lie would “bargain, sell, and convey, by good, legal, and sufficient title to yonr peti- “ tioner a certain negro slave named Washington, about twenty-two years of “age, and of the value of fourteen hundred and fifty dollars; and yonr petitioner avers that lie did then and there deliver to said Fort said thirteen “ hundred pounds of ginned and baled cotton; yet said Fort refused and neg- “ looted to convey to said McKinney, by good and sufficient title, said negro “ slave Washington, aged as aforesaid; but having received said last-mentioned “ cotton, afterwards, to wit, on tiie-day of May, 1847, tiie said negro died, “the property of said Fort, whereby an action hath accrued,” &e.
    The circumstances (as stated by tiie witness Alford) attending the original agreement for tlig purchase were that “ tiie plaintiff came to the de“f'endaut’b plantation for tiie purpose of purchasing the boy Wash, stating as “a reason that he owned Wash’s wife, and that being about to remove to Ool-“lin county, lie did not like to separate them. The defendant proposed to “ purchase the girl, but the plaintiff' refused to sell, on the ground that she was “ a present to liim, and was not suitable for a plantation negro. It was finally “agreed that tiie plaintiff should give a certain amount of cotton for the hoy; “tiie cotton was to be delivered hi some few weeks, and the defendant was to “ keep the negro some short time and then deliver him to the plaintiff. Mot a “word was said as to title or soundness of the property. The parties agreed “it was not necessary to clothe their agreement in writing, mutually confiding “iu the word of each other to carry out the contract.”
    A witness, (Wright.) who was the overseer of the defendant, and who was present at tiie delivery of tiie cotton, stated that it was agreed that the cotton, if lost, should be tiie loss of the defendant; and if tiie negro died, it was to he tiie loss of the plaintiff; and lie, the witness, was to deliver tiie hoy to McKinney that night, which he accordingly did. It was also in evidence that the plaintiff, about tiie time of the delivery of tiie cotton, asked for a bill of sale, which tiie defendant promised to deliver to him at the next term of the District Court.
    William Ellett, a witness for plaintiff, testified that “about the 1st of May, “1847, ho, witness, was at tiie house of defendant, and heard liim state to “D. Diminan that he liad sold his negro hoy Wasli for twenty-five or twenty-“six líales of cotton; did not recollect the precise amount; that lie said he “expected to get ten cents per pound for it, which would be enough to buy “two good negroes; that defendant paused a short time and then remarked “ that ‘ he was not a well negro at that; ’ that it was said in a boastful manner, “but that the impression was produced on his mind that defendant had “been guilty of a fraudulent transaction; and that tiie reason why he, the “ witness, recollected it was that there was then an attempt being made to “establish a church, and that lie and defendant were of the number of the “ members; that witness remarked to his wife, who was with him at the time, “ that he thought defendant had been guilty of a fraudulent transaction. On “cross-examination, witness stated that he had not caused defendant to be “charged before the church, because, by the regulations, an informant could ■“not be a witness.”
    The opinion of the court states some other facts corroboratory of the above.
    'There was a bill of exceptions, as follows :
    “Be it remembered that, during the trial in the case, the plaintiff proposed ■“to prove by J. A. Talbott and H. S. Janes that they had lived in this county ‘‘for about twenty years, and were acquainted with the custom, of the country “in Bowie county relative to the sale of negroes, and that it was the custom .“that when a man sold a negro that he gave a bill of sale of the same, warranting the title, soundness and sense of the same in the absence of an “express contract to the contrary; which testimony being objected to, the '“judge sustained the objection, to which plaintiff' excepts.”
    The judge charged the jury, “1st. That a sound price does not imply a “soundness of property.
    “2d. That a jury may infer that a delivery of the negro and removing him “from the county was a waiver of the bill of sale by McKinney.
    “3d. That it was not necessary that Port should give a bill of sale to “make a conqUete conveyance of the negro, if he made a delivery of the “negro.
    “4th. That there is no fraud charged in the petition, and therefore no evi- “ deuce of fraud committed by Port can be taken into consideration by the “jury.
    “5th. That if there was no contract of express warranty there is no implied “warranty from the fact that there was a sound price.”
    The judge refused charge “3d. — -That if a person sell a slave for a “full price that the slave wouhUbe worth if sound in every respect, and the “vendor agreed an the time of receiving the payment to make a bill of sale “and send it to the vendee, and if nothing was said as to what kind of a bill “ of sale was to be made by the parties, the law would require the vendor to “make a bill of sale with a covenant of warranty of title and soundness of “the slave.
    “And 8th. — That if McKinney gave the full price of a perfect sound slave, “and the negro was unsound at the time of delivery, and afterwards died of “that uusou'ndness, that he is in law entitled to recover back the price paid “for the negro, if he did not know of the unsouuduess at the time of the purchase, and the unsoundness was known to the other party, even if there was “ no express warranty of soundness.”
    
      Morrill Sf Dichson, for appellant.
    The first and fifth charges given, and the two requested charges which wore refused, are in substance, with some variations, the same. They involve the legal question whether a sound xn'ice implies a warranty of soundness, and the one refused, numbered eight, in addition, involves the question whether a sound price implies a warranty of soundness if the purchaser did not know of the existence of the unsounduess, and if the seller knew the same, or, in other words, whether or not fraud is to be tolerated in the courts of Texas.
    I am aware that it is laid down as law in some of the United States, and in some periods of the jurisprudence of England also, that “a sound price does “not imply a soundness of property.” ‘But, in those very courts that make this decision, they admit that precedent makes the law; and whenever they are compelled to declare this principle, they almost invariably qualify the doctrine in such a manner as to do away with the effect of it.
    Chancellor Kent says, with regard to the quality or goodness of the article sold, “The seller is not bound to answer, except under special cireum-“stances, unless he expressly warranted the goods to he sound and good, or “unless he hath made a fraudulent representation, or used some fraudulent “concealment concerning them which amounts to a warranty in law.” (2 Kent Com., 478.)
    To. apply the law as laid down by Chancellor Kent alongside the law as stated by the judge in the District Court, we see a great discrepancy. The district judge made an assertion, in his general charge to the jury, without íiuy qualification. And, when requested to qualify it so as to charge, “If the “vendor knew of the unsouudness and the purchaser did not luiow,” that there would be an exception, he still refused to make any qualification.
    In the case of Dogget.t v. Emerson, 3 Story’s R., 732, judge Story says: “It “appears to me that it is high time that the principles of courts of equity, upon “the subject of sales and purchasers, should be better understood and more “ rigidly enforced in the community. It is equally promotive of sound morals, “fair dealings, and public justice and policy, that every vendor should distinctly comprehend not only that good faith should reign over all his eon-“duet in relation to the sale, biit there should be the most scrupulous good 4‘faitli, and exulted, or as it is often felicitously expressed, ‘uberrima¿fieles,’’ “in every representation made by him as an induce to the sale. (Story on “Sales, see. 374, note 3.) lie slionld, literally, iii his representations, tell “the truth, the whole truth, and nothing but the truth. If his representation is false in any substantial circumstance going to the inducement or “essence of (lie bargain, and the vendee is thereby''misled, the sale is voidable; and it is equally immaterial whether the representation he willfully “and designedly false, or ignorantly and negligently untrue. The vendor “acts at his peril, and is hound by every syllable lie utters, or proclaims, or “knowingly impresses on the vendee as a lure or decisive motive to the “bargain.”
    It is also stated by Story, in his work on sales, (sec. 374,) “A warranty “will be implied against all latent defects in two oases: 1st. When the seller “knew Unit the buyer did not rely upon his own judgment, but on that of the “seller, who knew or might have known the existence of the defects.”
    This exception to the general rule is allowed on the ground that “the seller “in such a ease is guilty of a constructive fraud, and, however unintentionally, “ does mislead the vendee to his injury.”
    “And misrepresentations of a material fact made by oue party, with a design “to deceive the other party to his injury, is a fraud which an unis a contract, “made upon the basis thereof. The question of fraud does not depend upon “the fraudulent intention, but often upon the practical result of the representations. Nor does it matter in what mode or by what means the deception is practiced, whether by signs, by word, by silence, or by acts, provided “that it actually induces a false and injurious impression.” (Ib.)
    This last-mentioned author, in the preface to his work, states as a reason why he. considered the work necessary, “There is probably no portion of law “which is subject to more changes and additions than that relative to sales of “personal properly. The continual increase of commerce not only gives birth “to new questions, but materially modifies established doctrines.' The doctrine of implied warranty, for instance, which is our main branch of the law “of sales, is almost entirely the growth of very late years.”
    To trace the history of this principle, “ a sound price does imply a warranty “of soundness of property,” from the earliest to the latest decisions, is much like tracing the right of a mortgage. And we can say of the former, what Chancellor Kent said of the latter“Their influence has reached the courts of “law; and the cases of mortgages is one of the most splendid instances in the “history of our jurisprudence of the triumph of equitable principles over tech■“nical rules, and of the homage which those principles have received by their “adoption in the courts of law. Without any prophetic anticipation, “we may well say that returning justice lifts aloft her scale.”
    
      Whenever the constitution and laws of a State have permitted the courts to decide agreeably to equitable principles, the doctrine invariably is, “a sound “price implies a warranty of soundness of property.” Accordingly, it is regarded as not an open question in South Carolina, Louisiana, Pennsylvania, and North Carolina. (2 BayK., 3S0; Id., 19; Id., 324; 1 Nott & McC., 142; Id., 104; Const. It., 23G ; 2 Nott & McC., 70; 3 Id., 513; 1 Taylor It., 17; 6 Biun. It., 148; 1 Itep. Const. Ct., 182; 2 Id., 353.)
    II. The third error assigned is that the judge erred in charging' the jury—
    “4th. That there is no'fraud charged in the petition, and therefore no evidence of fraud committed by Fort can be taken into consideration by the “jury.”
    Tlie testimony that was given, witli one single exception, was not excepted' to hy Dr. Fort; and it is rather unusual for the judge to rule out testimony after it lias been given in by the parties without exception, and without being requested so to <to, and particularly in his charge. Had the plaiutill proposed to prove the fraud that was proved, and had the testimony been executed to and tlie exceptions sustained, a different aspect of the case would he presented.
    But as the testimony in the case ivas given without exception on tlie part of Fort, and as this testimony shows that Fort stated that lie had sold his hoy for twenty-live or twenty-six bales of cotton, and that lie was not a well negro “at tliat; ” that the negro had been before'that time frequently under tlie care of tlie doctors, and that the party defendant ivas a doctor — add to this that Fort denies in his answer that he ever agreed to give warranty, and also tlie fact that when called upon, at tiie time he received payment of the negro, to make a bill of sale of tlie negro, aud that he refused, promising to do so at some time future; knowing that McKinney was about to leave that section of tlie country, and probably anticipating', from his medical knowledge, that that would occur which eventually did take place — taking all these things into consideration, we can safely say ': “That there was in this case a gross “and palpable misrepresentation and deception intentionally practiced upon “ the plaintiff hy tlie defendant in a most material fact, seems scarcely to admit “ of a doubt.” (4 Tex. It., 79.)
    “It cannot with justice he said that the parties had equal moans of information respecting tlie facts, and therefore the maxim of caveat emptor ought to “apply.” (Id., 80.)
    “It is true that fraud is not charged in express terms, hut the facts alleged “are quite inconsistent with fairness and honesty on the part of the defendant. “If the averments in the petition be admitted there is, ive think, no rational “conclusión which can he drawn from them consistent with honesty and fair “ dealing on the part of tlie defendant. We are not aware of any rule or principle in our law which requires that the fraudulent intent he expressly “averred.”
    III. The judge erred in tlie second and third charges given to tlie jury.
    The testimony in the case is, that tlie reason why McKinney told Dr. Fort
    he wished to purchase the negro was because he was about to remove to a distant county, and because heNvas tlie owner of the negro’s wife. It is also in proof that when McKinney demanded the bill of sale lie was told by Fort that he would hand it to him at the District Court. The most therefore that could he inferred by McKinney removing tlie negro, and not insisting upon tlie bill of sale immediately, was that lie agreed to wait until tlie District Court for tlie bill of sale. (13 Johns, ii., 293; Oliitty on Coot., 274; Id., 334, 2d pli. of notes; 4 Mass. It., 405; 17 Id., 605; 5 Tex. it., 552:)
    As the contract never was completely executed according to tlie. understanding of botli panics, because the bill of 'sale was not given, it follows, as a matter of course, that it was executory in part at least.
    Indeed, Fort in. his answer does not pretend that he over sold the negro to McKinney, but merely that he delivered him. Delivery, it is true, is one of the requirements necessary to perfect a sale, yet there must be something besides this; and that never having been done, and the contract being executory, the statute of Texas leaves McKinney no other remedy but to sue for the cotton.
    
      J. T. Mills, for defendant in error.
    As to the point made by plaintiff in error upon the doctrine of warranty, I think it, is firs'; necessary to determine !‘.ether tin* facts prove the negro Wash 'ohave die ' ;>f the disease he is pre- ; ended to b ■ afflicted with at the time of ! tie saie. ’ think they do not; but they are benwo the court, and will, I am satisfied, b, well looked into. “The “ first and g neral rule relating to warranty, in case:; of sale, is that the pur- “ chaser buys at his own risk." Caveat cmjrtor, unless the seller give an express “warranty, or unless the law imply a warranty from the circumstances of the “ case or the nature of the thing sold, or unless the seller be guilty of a fraudulent representation or concealment in respect to the material inducement “to the salo.” (Story on Sales, chap. 12, sec. 349; Pet. C. O. K., 300; 1 Wend. It., 185.) A warranty, to be binding, must be made at the time of the sale, and not after it. (Story on Sales, chap. 12, sec. 356, and the authorities there cited.) The old doctrine that a sound price of itself implies a warranty was exploded by Lord Mansfield, and his decision has been acquiesced in ever since by all the English courts. (See Stuart v. Wilkins, Doug. B., 20 ; Per-kinsou v. Lee, 2 East. B., 314. In North and South Carolina this doctrine, I admit, has been doubted, and perhaps the contrary doctrine hold, in opposition, however, I imagine, to the whole weight of authority. (See 2 Nolt & McCord, 7(1; Wend. B., 464.) Has the seller, Fort, made use of any fraud or deceit? This was a question of fact for the jury, and they have said not. I do not think the court will disturb the verdict. (1 Tex. B., 326; Id., 443 ; 2 Id., 284.)
   Hemphill, Ch. J.

Various grounds have been assigned for error; hut, as preliminary to a discussion of the points presented by the appellant, I will comment briefly on a position assumed by the appellee, viz : That, admitting the errors as charged in the rulings of the court, yet the verdict should stand, there being no evidence that the negro died of any infirmity existing at the time of the sale. Upon this point the proof is not satisfactory. There was evidence that some years previous to the sale the boy had been affected with the dropsy, of which he had been cured, although there was subsequently some threatening symptoms. But there was no proof that the disease of which he died was either dropsy or superinduced by that disease. No physician was called, and none of the witnesses could characterize the disease. Lewis, a physician and a witness, was of opinion, from the symptoms described in the deposition of another-witness, that the disease was winter fever or pneumonia.

Wright, the overseer of Fort, testified that the negro was sound at the time of the sale; but, on the other hand, there was evidence that he was in bad health from that time. One witness stated that he was reputed sick from the removal of the plaintiff to Collin county; but that at the time of removal from Bowie through the prairies to Collin county the weather was extremely inclement, cold, and wot, and there was a norther blowing. But upon this point i»is not necessary to dwell. That the death resulted from some disease anterior to the sale should have been more clearly established. But probably this view was not taken in the court below, and as it is not essential to the decision wo. will dispense with its further discussion.

We are of opinion that there is no ground for the first assignment, and that, in excluding the testimony of Talbott and Jones, there was no error.

It is assigned, secondly, that the judge erred in the charge to the jury.

The first and fifth propositions in tlie charge embody the principle that a sound price does not imply a warranty pi soundness of property. That the reverse of this is true, viz, that a sound price implies a sound commodity, is a familiar principle of Roman law and of the laws of Spain, in force in Texas previous to 1840. But under the common-law system then introduced the authority of this principle lias not been recognized. The ruling maxim of this system on the subject of sales differs from that which obtains at civil law. In the one the rule is caveat emplor ; iu the other, caveat venditor.

But, thongli the maxim of caveat emptor is still recognized as having some force at common law, yet it is hedged in with many restrictions and circumscribed with so many exceptions that its authority over the law of sale is greatly abridged, and, in fact, it is hut a “ shadow of itself.” (Story on Sales, sec. 359.)

The rule at common law now appears to he that the purchaser buys at his own risk, unless the seller give either an express warranty, or unless the law implies a warranty from the circumstances of the case or the nature of the thing sold, or unless the seller bo guilty of a fraudulent concealment or representation iii respect to a material inducement to the sale. (Story on Sales, sec. 349; 2 Kent, 478.)

A fair price implies a warranty of title, hut not, unless under special circumstances, a warranty of soundness. A purchaser must, at his own risk, attend to the quality of the article which lie buys, supposed to he within the reach of his observation and. judgment. A rule which has a more direct application to the facts of this case is, that where there is no express warranty by the seller, or fraud on his part, the buyer, who examines the article for himself, must abide by all losses arising from latent defects, equally unknown to both parties. Tliis rule applies to cases, says Chancellor Kent, where the article is equally open to the inspection of both parties, and the purchaser relies on his own information and judgment, without requiring any warranty of the quality, and it does not apply to cases where the purchaser lias ordered goods of a certain quality and relies on the judgment of the seller. (2 Kent, 479.) It £nay he laid down as a rule, condensed from the authorities, that if the defect in the article be equally open to the observation of both parties — if the meaus of information be equally accessible to both; if neither does nor says anything tending to impose upon the other, and if the one in possession of material facts, knowing the other to he ignorant of them, he under no special obligation, by confidence reposed or otherwise, to communicate them truly and fairly — then the disclosure of this superior knowledge, as to facts affecting the value of the commodity, is not requisite to the validity of the contract. (2 Kent Com., 482, 484, 490; Story on Sales, capt. xii.)

In recent English cases another encroachment has been made upon the domain of the maxim of caveat eniplor. It is laid down as a principle, (hat if a man sells an article he thereby warrants it to he merchantable — that it is fit for some purpose; and if he sell it for a particular purpose, that it is fit for that purpose. (Story on Sales, sec. 37 L; Kent, 479 ; Gray v. Cox, 4 Barn. & Cres.; 4 Campb. R., 144; 2 Mann. & Gr. R., 279, 290, 292.)

To apply such of the above rules as are pertinent, let us examine the facts of the ease.

It does not appear that any representations of any character were made by the defendant in relation to the soundness of the slave. The purchaser was perfectly apprised of his condition. Bor four years previous to the purchase the hoy had had a wife at the plaintiff’s house, whom he had visited every Saturday night, remaining until Monday morning, frequently visiting her on Wednesday night. The plaintiff also made inquiries of the overseer, Wright, in relation to the health of the boy previous to the sale; and a witness (Runnels) testified that in the year 1843, on proposing to sell the plaintiff a slave, he replied that he intended to buy Dr. Fort’s Wash; and on witness saying tlpt AVash was a sickly, dropsical negro, plaintiff stated that he knew as much about the health pi the negro as Dr. Fort or anybody else, and that he would rather have Wash than any two negroes in the county.

The facts show the confident reliance, of. the plaintiff on his own judgment; that his means of information wore ample; that he did not seek the, opinion of the defendant. And such was his confidence in himself, that he would most probably have disregarded Lhe opinion of the defendant had it been voluntarily expressed.

If the plaintiff was deceived as to the condition of the boy, his mistake did not originate, from any misrepresentation or other act of the defendant. And if the latter had superior knowledge of the infirmities of the slave, he was not, under the circumstances, bound to make a disclosure. ISTo confidence was reposed in him. Ilis opinion was not asked, and if given, would most likely have liad no influence. The plaintiff appears to have been determined on the purchase, and the inducements to it were as potent as they were highly honorable to his feelings and sympathies as man aud as a master. The price of the negro was high, but to this lie was willing to submit, rather than inflict upon a valued female, servant the miseries of separation from her husband. Under such circumstances, and with motives so highly commendable, it is unfortunate that the benevolence of the plaintiff has resulted in a loss so severe, but it is not justly attributable to any act or expression of defendant, or any concealment by him which is in law regarded as fraudulent.

There was no express warranty of soundness to which the plaintiff can resort for relief; nor, under such circumstances, is there in law any implied warranty. There was no error, then, ill the charge, either abstractly considered qr with reference tft the facts of the case, that a sound price does not imply a sound commodity.

It will be unnecessary to discuss the points raised as to the promised bill of sale, except to assent to the proposition that it was not essential to vest property in the plaintiff, and that, on the delivery of the slave, the title was completo; or rather, under the facts of this case, the property, on payment of the consideration, attached to the purchaser.

The fourth proposition is that, as there was no fraud charged in the petition, no evidence of fraud committed by Fort could be taken into consideration by the jury. As a legal proposition tills is unquestionably sound. Flo allegations in the pleadings apprised the defendant that he must prepare to meet- any charges of fraud. But the law of this case has been discussed as if the whole of the facts in evidence had been considered by the jury, and if there was error in the charges, it would'not, on the whole of the facts, disturb the verdict. The defendant may not have believed the boy to be sound. That such was his opinion is manifest from conversations subsequent to the sale, aud his exaction of an exorbitant price is,.under such circumstances, in point of morals uneonsci-eutious. But it is equally clear that he used no artifice nor did any act to impress an opposite belief in the plaintiff, and that, in contemplation of law, he was not guilty of any fraud. The plaintiff throughout the transaction confided altogether in his own judgment, aud if he was deceived it was his misfortune, and not the fault of the defendant. On this substantial ground the verdict is a true finding upon the law and the facts of the case.

The refusal of the judge to give certain instructions asked by plaintiff presents no substantial points uoCembraeed in the questions already considered.

Judgment affirmed.

Note 30. — Murphy v. Crain, 12 T., 297; Scranton v. Tilley, 16 T., 183. To constitute a breach of warranty of soundness, the disease must have existed in a formed state at the time of the sale, and have becomo of a permanent nature calculated to materially affect the value. A disease of any kind if easily removed, but by neglect or maltreatment allowed to prove fatal, is not unsoundness within the meaning of the warranty. Wade v. DeWitt, 20 T., 398.

Note 40. — Murphy v. Crain, 12 T., 297; Scranton v. Tilley, 16 T., 183.

Note 41. — Good v. Coombs, 28 T., 49.  