Year: 1859




a1:1 sss sss9s;%S ssSSs q fpas sa


Terms 1883.


: william Pollard, .. 5aesS VIsbsr. -
o In August 1857, Pollard sold to Fisher slave
q named Bill, for $4,000, and certain iron gray
horse provided the slave then runaway could Be ob-
. tained in possession By the vender. In that event
the money 20 be paid and the horse delivered
and said Fisher agreed TO make all things right


as to the horse above spoken Of. 20 soundness in


every respect Such is the contract as set forth In
writing that day signed by the parties. The events
contemplated all very soon. after happened. The


money was paid, the horse delivered and q bill Of
sale executed for the slave. In March, 1858, this
action was instituted fer unsoundness in the horse
! and 4 verdict and Judgment obtained for $50 90
against the defendant.


There is nothing in The obsgatioa. that. as this
trade was conditional that IS only 10 take effect ia
the event the slave reclaimed, the written war
rany Of the soundneSs Of the horse was not Obga-
tory, The contingency having happened it took faI


effect as if it had been without condition So tho
contract Of warranty was binding.
The main controversy in the case, upon the trial


Wesas 10 the extent Of the warranty IL was cedeG
that the horse unsound in one or both eyes


but this it IS Insisted was visible TO the most casual
observer, and was in fact well known the vendee
and consequently not covered by the warranty
How the facts were, in that respect is SO mate
rial now as the jury have passed upon them but the
question before Is, whether the law was correct
ly charged By the Court On that doctrire.


IL Is well settled. thata general warranty ofsou-d
ness, whether IN writing psrol does extend to
all unsoundness or defect which is plain and obyi-
Gus to the purchaser or (which he had eogniEance
Par. on Con. 400, Hump. 30S. This is upon the
ground that it viii not be presumed that the pastes
intended to embrace in the general terms employed
IN the contract, imperfeetiOns well known 70 bOth
or plainly visible and obvious, that they must
be presumed to have been known BY the Yendee.
This rule is always applied for the purpose Of re
strcting the general words used the manifest in
/ and of mart rnulA hn
absurd to suppose that the seller intended to make
and the Vendee supposed he receiving a war
ranty against defects well known to both parties
50 apparent and visible a. to be obvious to ordinary
! observation


The case of Long vs. Hicks, Hump. sos, decides
that "a written warranty does not extend 20 defects
which visible, or Of which tie Yendee is inform
ed at the time of sale. The case before the Court
TO which the principle was applied, rested upon the
correctness Ofthe charge to the jury in these words
shat if the negro ursOund at the date Of the
warranty, there was breach, and that they were
10 disregard the testimony, as to knowledge of the
plaintiff in reference the uDsOundness. The Court
has rejected all proof Of the knowledge Of the pur
chaser of the unsoundnessn Il is stated in the op-
iOn in that case that the proof shows that the
sOundness was so obvious, that any one who had eV
er seen negro might discover it by casual view"
and the purchaser in reference to it said, "he did
not care. the woman was worth the money be was
paying for both" That decision certainly cor
rect and so in the rule laid down in reference to il


That case was fully recognized in the charge now


But the character Of the patent defects. whiek
according to this principle, are extended from the
warranty IS another question The want OF a tail,
or ear, or limb. are excluded, but any other Proni
Dent defect or unsOUndness known 9r visible. would
likewise be embraced by the rule, 5nt il is made
known seen, that there is some detect in the eye
or sptird in the leg without present ameness from


but Afterwards the eye went out from the injury,
or the horse became lame from the effect of the
Spiint, yet the warranty of sOundness would cover
the defect because the extent Of the disease Gr de-
feet was not known The principle seems to be,
that TO exclude defect from the operation from
the general warranty Of Soundness uDOn the ground
that it is known to the purchaser. or might have
heen beSause OF ils being plain and obvious it must
appear that the Tendee not msled 70 its char
acter or extent


The fact that 3 slave has a cough OF doubtful IN
dicatiOns Of cancer, white swelling, or drOpsy on,
any other disease, and this known to the buyer
does not the seller from the obligations of a
general warranty of soundneSs, if their appearances
and indications should turn Out 20 be the incipent
stages Of a permanent disease, Par. on Con 400.
and cases there cited. To exclude defect or dis
ease from the OperatoR Of warranty, il must De OF
such character description TO disclose to the
Vendee, not only the existence but the Of the
defect 9r disease, and this not So it Is covered By
the warranty.


To illustrate by the case in hand Some defect in
the eye of the horse was not only made known, but
was visible; but it said BY the vendor it result
a
its extent not disclosed, nor could it be discov
cred. This sort of case is covered by the warranty
even though there may be no defect found.


The part Of the charge particularly objected to, il
this: IF horse is sold with a written warrantT of
soundness the vendor could not protect himself
from an action by introducing part proof to show
that he disclosed the unsoundness at tho time Of the
sale and that the Vendee took the horse his own
risk" Proof TO show those facts was offered and
rejected. We are not able to reconcile this position
in the charge to the general rule that defects known
to the vendee, are nos covered BY the warranty.
The rule stated. Long Hicks Is that "A written
warranty does not extend TO defects OF which the
veRdee IS informed a. the time of salen If the
writing specified thal the eye the lnb was sound
or that the animal was tree from the ganders.
any specified disease then il wOu hot be alvisabls
to prove, II the face Of the wiring that such dis
elsS Was made known or excepted; and tn ruiz
would be the same if the warranty was In part
But where the warranty is in gene al terms.
think the law Is too well settled b. st rbe hlr
defects known or visible ara not were and 1i-
$ quently proof to establish these Lass 49, D.
com jetsnt The object of the rule is not % leita-
or contraCi;t the contract bat u de6ns and -
III not to Fl ustFate the intenueR the pates bar
70 ascertain what was meant by them 70 b. cog XII
| i the undertaking by the yendIr. Ihe rue isef
would seem at first view to iniringe upon o,her es-
tabLshed principles but with tins ex ytaaai1n of IT,
/ perhaps it does not At all events M Is fOed anA
sstsed whether it be consistent with OJer or
/ a. exception to them


In this particular we think his Ionor err, JhoaSh
/ his charge in other respects very able and corr
rect in the doctrine involved
From what we see Of the case, it is BY means
oeFt4in that correct charge in this point with Che
proof rejected would have changed tie result be
cause it may be, that all which was said, and made
known at the time, would only amount the diselos
| ure Of the bemish, injury, that might nos have
been understood By the parties % be permanent
| injury, in which case, il would not be exempted
from the warranty, hut be covered by II in the
| event shat 1t turned cut to be serious sntf
| fatal than the information communicated or the
| appearance indicated,


In other words the extent Of the disease defcct
may not have been obvious or made known. and II
| not have seen, it would stl tan urdsr the
| warranty Of soun1ness.


But the defendant was entitled 10 the benefit Of
his proof on this point before the jury, on correct
| charge


For this error the Judgment wiz be reversed
4 CARUa a1sERs-
1 Test NJ d. WELC4. Clerk.