Nashville union and American. [volume] (Nashville, Tenn.) 1853-1862, 1859-05-10
keaFly vs.. Duncan.

This was an action on the case, grounded on an
alleged breach Of warranty of the souudness Of
certain slaves. The evidence OF The warranty, re-
lied on by the plaintiff is contained in the following
instrument
'ReceiSed of NJ B. Duncan, fourteen hundred
dollars fer negro woman ArzeIlO aud two children,
sold under decree of court, by William Ksariy,
commissioner and administrator Of Areh'd and
Margaret Rutherford, decd; said negroes sound in
body ard mind, and slaves for life This lOIh Of
January, 1857.
CIVILIAN KEARLY, Commissioner"
Judgment was rendered in favor Of plaintiff for
$3.50 90, to which appeal in error has
been prosecute ed TO this court
No question is made upon the facts. The un-
soundEess Of the slaves the time OF the sale, Of
nature and degree TO render them Of no value, aud
the defendants kno Wledge Of such uusoundness are
sufficiently established.
The errors relied upon are supposed 10 be in the
opinions and instructions Of the court.
l. The court, in substance, instructed the jury,
that the words, Esaid negroes sound in body and
mind" contained in the foregoing instrument,
amounted to warranty Of souRdness Of the slaves;
and that said warranty was personally binding on
the defendant.
Both Of these Instructions we think, are strictly
correct. Itwas uuquesIionably the province Of the
court to interpret the language Of the instrument
aud also to declare its legal effect. Aud in doing
So il was proper for the court, upon the facts OF
this case TO look to the face Of the instrument alone
That the words Of the instrument contain a clear
and explicit warranty, Is proposition too plain to
admit Of dseussioD and il is no less clear, upon
familiar well established principle, that the de-
fendsnt is personally liable upon the warranty.
Having, voluntarily, the absence of fraud, mis-
take or other cause sufficient to avoid his under
taking, stipulated, personally, for The soundness OF
the slaves, though not in aDyEise bound TO do 50,
he eannoi escape from the legal liability thereby
incurred; neither can he be heard to or prove
an intention contrary to the plain import Of the
writing. ..-r.
81 The court held, tha. parol evidence Of state
ments and declarations made by the defendant, or
the crier during the progress of the sale, OF before
the written insirGmsnt was executed TO the effect
that the defendant was acting under the appoints
ment OF the court--thst he would incur no personal
responsibility in respect TO the s6undness Of the
slaves or OtherWiseth8t purchasers must judge for
themselves and buy at their peTiiand that, short
II before the execution of said instrument, be had
refused, when applied to, to make any warranty Of
soundness of the slsves--Eas inadmissible for the
purpose Of eontradictiBg the terms Of said insru>
ment, and al such evidence was rejected
In this, there no eTr9r, as Was declared in
the recent eases Of Bryan vs.. Hunt, and Ellis vs.
Hamilton, 4 Sneed, 5I2, 544 The conduct Of the
defendant is certainly rather inexplicable from ali
the proof in the record
twihstandiug the foregoing declarations offered
TO be proved it is shown in tbs proof, that, duIirg
The progress Of the SALE the defendant proposed 20
warrant the souudaess Of The slaves, if the plaintiff
would become the purchaser. But we attach no
importance to This fact in the determination Of the
question. Our decision rests upon the ground that
Immediately after the sale over aHd on the re-
eeption Of the purchase money the defendant velun
ally sLd deliberately prepared with bis own hand,
and delivered to the plaintiff, the foregoing instru-
msni; aaa that there is not the slightest ground IN