Kinley v. Fitzpatrick ( 1839 )

Mr. Justice Trotter

delivered the opinion of the court.

It is a well settled rule that in every action on a warranty, it müst be shewn, that there was an .express and direct affirmation of the quality or condition of the thing sold. And that a mere expression of opinion as to the soundness of the property by the vendor is not sufficient. Whether the affirmation of the vendor amomits to a warranty or to an opinion merely is in every case a question for the jury, who are required to decide it in reference to the intention of the vendor, as it is to be inferred from all the facts connected with the contract. The court below should therefore have permitted the bill of sale to go before the jury, whose province it was to determine whether it contained an express warranty of soundness as alleged by the plaintiff. This was so ruled in the case of Chapman v. Murch, 19 J. R. 290, and also in that of Duffee v. Mason, 8 Cowen’s Rep. 25. And also in 2 Cowen, 138. 4 do. 422. But we are of opinion that the court also erred, in determining that the language of the vendor, in relation to the quality and condition of the slaves mentioned in the bill of sale did not amount to a warranty. It is true that there must be an express affirmation by the vendor that the property is sound. But when that is shewn, it would be an anomaly to require that the word warrant should be used. Such was the language of the court in the case of Chapman v. Murch, before noticed. If a man should say on the sale of a horse “I promise you the horse is sound,” it is difficult to conceive that this is not a warrant. No particular phraseology is requisite to constitute a warranty. Any affirmation by the vendor of the quality of the property, shewing an intention to warrant its soundness, is sufficient. Comyn on Contr. 116. We have no doubt that such is a fair interpretation of the words used by Fitzpatrick in the bill of sale.

In the case of Cramer v. Bradshaw, 10 J. Rep. 484, the language of the vendor was very similar to that used by the defendant in this caseN It was that he had granted, bargained and sold to the plaintiff, « a negro woman named Sarah, agéd about thirty years, being of sound mind and limb, and free from all disease.” There then follows, as in the bill of sale in the case at bar, a formal warranty of title. The court held these not to be words of description, but to constitute an express warranty of soundness. In the case of Gilchrist v. Morrow, 2 Carolina Law Reports, 607, the negro sold, was described in the bill of sale as “ about 11 years old, sound and healthy,” after which there is, as in this case, a formal warranty as to the title. And this was held to be a warranty of soundness. The case of Ditto v. Helm, 2 J. J. Marshall, 129, is similar in principle. The bill of sale states that the vendor sold the negro described in it " to Ditto as a sound and healthy negroand these words were held to amount to a warranty. In all these cases the words used, were held to be more than a mere affirmation. They were considered as an agreement, a stipulation that the property was sound, and as carrying with them an intention to guarantee the sound condition of the property, as much so as if more formal and technical language had been used. The only case in which similar words have received a contrary interpretation, which we have been enabled to find, is that of Smith v. Miller, 2 Bibb’s Rep. 616. That case however is not sustained by principle or authority.

Let the judgment be reversed, and a venire de novo awarded.