Barnes v. Blair , 16 Ala. 71 ( 1849 )

DARGAN, J.

This was an action of assumpsit, for the false warranty of a slave, sold by the defendant to the plaintiff,, arid which the plaintiff contends was- warranted to be sound. The' bill of sale is in the following language : “ Received, Mobile 24th April 1845, of James Barnes, six hundred and fifty dollars for a negro slave named Joe,-about 25 years old, sound and healthy; the title to the same I fully guarantee.” I admit that there are several' decisions to be found, which hold that this bill of sale should be construed as containing a war-rarity of soundness. See Cramer v. Bradshaw, 10 Johns. 484; Gilchrist v. Morrow, Carolina Law Rep. 607; 3 Hawks, 59. These decisions hoAvever rest upon the ground, that the words,- “ sound and healthy” constitute an averment of a fact, and therefore1 amount to a warranty;! brit no notice was taken of the circumstance, that there was an express warranty of title,immediately succeeding them, which in our opinion is very material in arriving at the correct intention of the parties, and which is the true test whether the contract of sale contains a warranty of soundness or riot/ The natural iiripression that the words used in the bill of sale would seem to convey is, that th'e seller represented the slave to be about twenty-five yeafs1 old', sound atid healthy, and that he -undertook to warrant the'title only, and we think this is the proper construction to be given to it. We admit that if the bill of sale had not contained an express warranty of title, that the affirmation made, that the slate Xvas sound and healthy, would h'ave constituted' a warranty of soundness, but when we see immediately following the words, sound and healthy, an express warranty of title by the use of the words, “ the title to the same I fully-guarantee,” we think the intention of the seller was to warrant the title alone, and the words, “ about twenty-five years' old, sound and healthy” are words of description, and not a warranty cither as ftf the age or health of the slave. In the case of Budd v. Fairmaner, 8 Bingham, 48, the bill of sale was: “ Received of Budd, ten pounds for a gray four year old colt, warranted sound:” the complaint was, that the colt-Avas only three years old, and the question was Avhether the warranty extended to the age of the colt. Chief Justice Tin-dal said’, that where there is an express warranty to a single point, the law Avill not imply anotherand it was held by all the judges, that the warranty extended to the soundness alone, and not to the age of the colt. Bo in the case of Dickinson v. Gapp, cited in the opinion of the court last referred to: the bill of sale was, “ Received of D., one hundred pounds for a bay gelding, got by Cheshire Cheese, warranted sound:” the breach alleged was, , that Cheshire Cheese was not his sire. It was held- that the warranty extended to the soundness of the horse and not to his pedigree. In the case of Smith v. Norton & Miller, 2 Bibb, 616, the bill of sale was almost identical with the one now before us; the court determined, that the warranty extended to the title only, and not to the soundness of the slave. These citations are' sufficient to show at least, that there is a want of harmony in the decisions on this subject,,and we axe therefore left free to construe this instrument, as if the question was res integra. The intention' of the parties is tire material inquiry, and that we must gather from the entire instrument,, and not fix on any word a particular legal import, irrespective of the connexion it bears to the other words used in the bill of sale. The words sound and healthy, had they stood alone, and not in connexion with the subsequent warranty of title, would have been construed as importing a warranty of soundness, because we should have inferred that such was the intention of the seller, but when they are immediately followed by an express warranty of title, we cannot attach that meaning and intention to them, for we do not believe the parties intended to fix that meaning on them, but that they intended, what seems to be the natural and plain import of the whole instrument, that is, to represent the negro as about twenty-five years old and in good health, and that the seller warranted the title.

The ruling of the Circuit Court is in conformity with this view, and the judgment must be affirmed.