#### Madison & Latimer *ads.*Joseph M'Cullough.

In an action on a note for the purchase money of a negro slave, the vendor’s title to which was warranted on the sale, the defendants set up, by way of *discount,*certain defects in the title, and claimed an abatement of the price. The supposed defects depended upon many contingencies; no *loss*to the defendants had occurred, and it was uncertain whether any injury to.them on that account, *would ever*result. The defendants, with a full knowledge of the defects in the title, after the *first*note given for the purchase money fell due, made an arrangement with the plaintiff, giving him a new note by way of renewal, payable in a year after with interest, (which was the nóte now sued on,) during all which negotiation no objection was made on the score of deficiency in the title. The jury found a verdict for the plaintiff, without allowing any abatement, and a motion for a new trial was dismissed.

In the sale of personal property, e. g. a negro slave, where there is a warranty of title, the warranty stands as an indemnity against *loss*from any defect in the title of the vendor; and without *loss,*there can be no claim for abatement in the price of the thing sold by way of *discount,*in an action for the purchase money.

A *discount*must be something capable of valuation; something which can be estimated in *money.*

*Before EVANS, J., at Laurens, Fall Term,*1838.

This was an action of assumpsit on a note for $963. The defendants were negro traders, and purchased a negro woman, named Charlotte, from the plaintiff, at the price of $900. It appeared, Charlotte had been bequeathed by one James Ritchie to his daughter, Mrs. Wyatt, for life, with remainder to his children. Wyatt, the husband, sold her to M’Cullough, and he to defendants, giving them warranty of title and soundness. The defence was, the deficiency of title; which, the witnesses said, was understood by both parties. She was carried to Alabama and sold; but the purchaser learning the defect of the title, refused to pay, and the defendants were compelled to take her back.' After this, Latimer, one of the partners, returned to this state, leaving Madison with the negro in Alabama. The note was then due, and when called on for the money, he said if he had met *39M’Cullough a day or two sooner, he would have paid. He made no objection to this defect in the title, although it was then well known. By agreement between the parties, the old note was given up, and this note was given as a renewal, payable a year after, with the interest added ; and one witness said this note was given in consideration of M’Cullough’s waiting a year. During all this negotiation, no objection was made by Latimer that there was any deficiency in the title. Charlotte had no children, and there was no proof whether Mrs. Wyatt had children or not. One Dairs, a witness, said, he told Latimer that Charlotte was entailed property, and he said it made no difference — he intended to take her to Alabama. After this note was given, Charlotte was* again sold, in Alabama, on a credit; but the purchaser had refused to pay, and a suit was now pending for the purchase money, the purchaser there contending for an abatement of the price, on account of the defect of title. His honor did not feel himself at liberty to charge the jury, that this defence, under the facts of this case, could not avail the defendants; but was much inclined to think that a warranty of title, of a chattel, should be construed like a similar warranty of land, and that whilst the purchaser retains possession, and has never been molested, he can only recover nominal damages. The jury were directed to allow the defendants a discount, for the value of the remainder limited by Ritchie’s will to Mrs. Wyatt’s children, unless they believed from the evidence, when this note was given with an extended credit, it was understood between the parties the defect in the title was waived. The judge felt himself much embarrassed to lay down any rule, by which the abatement in the price was to be estimated. Charlotte was about twenty-seven years old, and had no children. She was older than Mrs. Wyatt, and might die first, so that the remainder would be worth nothing. The contingencies were so many and so uncertain, that the presiding judge inclined to the opinion that the jury were right in making the defendants pay the whole sum. He remarks, that “ all the difficulty arose out of the acts of the defendants; when they were clearly informed of the difficulty of the title, they should have returned the negro to the plaintiff, and put him back into the same condition he was before *40the sale. A discount is a cross action on the warranty. If the defendants had sued on the warranty, could they have recovered more than nominal damages, for this outstanding contingent remainder, the value of which no human tribunal can determine, or even approximate to the true value of it.”

[The verdict would seem to have been .for the plaintiff for the full amount of the note; and the motion now made in this court, though the grounds of appeal have not been furnished, would seem to have been for a new trial on the part of the defendants.]

Gantt, J., *dubitante.'*

Curia, per Evans, J.

The verdict in this case is right upon ®two grounds. The warranty is an indemnity against loss, and without loss there can be no claim for.abatement in the price, by way of discount. A' discount must be something capable of valuation — something which can be estimated in money. There were so many contingencies in this case, and it was so uncertain whether the title would ever prove defective, that I think the jury were right in allowing no abatement in the price.

2. I think, they were at liberty to conclude from the evidence, that when the note was renewed, there was a distinct understanding that every defence which existed before that time was waived. The evidence would have authorised the conclusion, and I know of no rule which requires that a waiver of a contract should be expressed directly in words. An agreement may be proved as well by the conduct of the parties as their words. The defendants are not prejudiced: they knew of the defect of title when they purchased, and if ever the remainder men should become entitled and recover the property, then there will be a clear breach of the warranty, and they can then bring their action.

The motion is dismissed.

Richardson, O’Neall, Earle and Butler, Justices, concurred.