Duff v. Ivy , 3 Stew. 140 ( 1830 )

By JUDGE CRENSHAW.

Three important questions naturally arise in the consideration of this case. 1st: Does the warranty contained in the bill of sale extend to the soundness as well as title of the negro Charity. 2nd: If it extends to the title only, was parol evidence admissible to prove that the parlies intended also to warrant the soundness. 3rd: Could the purchase money paid for her be recovered back under the common count for money had and received. In examining the subject I shall commence with the first proposition, the affirmative of which I hold to be true.

In ancient times the words “I warrant and defend” had a peculiar application to the title of lands; because in those times, when personal property was of very inconsiderable value, few indeed were the conveyances or written instruments except in relation to lands. In relation to lands, a general warranty has an appropriate application to the title, because the law does not raisé an implied warranty ol title on the sale of lands, and because there is nothing necessary to be warranted except the title. But in the sale of personal property, the law implies a warranty of title, though in general not of the quality or soundness. Hence it is a fair and legal deduction, to infer that the parties intended to warrant the soundness of the property as to which the law did not raise an implied warranty. Unless the language of the bill of sale would authorize the supposition, we ought not to suppose that the parties by the warranty intended it to apply merely to the title; this would be a nugatory and unnecessary act. Were presumptions necessary, it would be more rational to presume that the parties intended to do that which was necessary to be done, and that they meant to warrant the soundness as well as (he title. From the generality of the expression “I warrant and defend” contained in the bill of sale-, I think it apparent beyond a doubt that the-' warranty extends to the quality of the property sold, and with equal force to the soundness as well as the title, Hence it follows that the Court erred in instructing the jury that the warranty referred to the title only, and also in rejecting the evidence of unsoundness at the time of the sale, which would clearly establish a breach of warranty.

As to the the 2nd proposition, assuming the fact that the true sense and meaning of the bill of sale is to limit the warranty to the title, I think it evident that parol proof was inadmissible to shew that the parties intended also to warrant the soundness. An express warranty of the title alone, legally and necessarily excludes the idea of all other warranties. ' Expressio unvus esl exclusiu alterius, is a rule of interpretation too well settled to be now shaken. It is also an unquestionable rule of evidence, that parol testimony is inadmissible to establish other conditions and obligations than those expressed iu the written agreement. A written contract cannot be altered or varied, nor new terms added by parol proof. There was no error then in the Circuit Court in rejecting such parol proof.

As to the last proposition, I think the Court did not err in rejecting the evidence which was offered to 'prove that after the sale the defendant said he would return to the plaintiff the price he had paid for the negro, if he could prove her to be unsound at the time of the sale. This evidence was clearly inadmissable-under the count on the warranty, and it was equally so under the count for money had and received. This, if any thing, amounted to a new contract, and to enable the plaintiff to recover on it, required a special count.

The case of Payne v. Whale,^a bears a strong analogy to the present one. In that case it was held, that a subsequent agreement to return the purchase-money if in fact the property was unsound, was inadmissible testimony in an action to recover back the purchase money. So in the case of Thornton v. Wynn,^b it was determined by the Supreme Court of the United States, that a vendee cannot maintain an action for money had and received, unless the contract of sale has been rescinded by an offer to return the property sold, or by an unconditional assent on Che part of the vendor to take back the property and to return the purchase money, or by the vendee’s tendering back the property within a reasonable time, where the-vendor knew of the unsoundness at the time of the sale. In all other cases the Court plainly intimate that the dee, if entitled to redress, against the vendor must re-sorl to his warranty. But in this last opinion a majority of the Court does not concur.

On the ground alone therefore that the warranty in the present case refers as well to the soundness as to the title of the properly sold; and that evidence of unsoundness at the time of sale was admissible. I am for reversing the judgment and remanding the cause, and of the same opinion are the whole Court-

Judge Taylor,

expressed his belief that the plaintiff might recover on the special promise to return the purchase money, and he felt a difficulty in this respect on one point only, and that was as to what was the proper mode of proceeding, whether the proof of unsoundness to comply with the condition of the promise should be made before the suit was brought, or whether it could be made on the trial; that no special count on such a promise could be conveniently drawn, and if proof on the trial was sufficient, then the common count was proper; but as to this he had" not fully satisfied himself. He concurred-in the reversal on the first point.

Reversed and remanded,.

Judge Collier having been concerned as counsel in the. Circuit Court, and Judge White having presided in the Court below, did not sit.

a 7 East 274.

b 12 Wheaton 193‘