Starnes v. . Erwin , 32 N.C. 226 ( 1849 )

The contract proved is different from that declared on. In the former the warranty, if made, was qualified by the understanding and express agreement of the parties, that they should do the work. The contract declared on has no such stipulation, but is an unqualified undertaking by the defendant that, if they should buy, they should make $100 in ten days. It is not necessary that a contract should be set out in the declaration inhoc verbo: a statement substantially correct is sufficient. The promise must, however, be correctly set out, and any substantive variation between the promise laid and that proved will be fatal. When a declaration stated that the defendant, on the sale of a horse, warranted him to be sound, and the proof was of a warranty of soundness everywhere except a kick on the leg, the variance was held to be fatal. Jones v.Cowly, 4 B. and Cres., 445. So where the declaration stated the warranty to be on the sale of one horse, and (228) the proof showed a sale to the plaintiff of two horses belonging to different persons by the same contract, the court held the evidence did not support the declaration. Symonds v.Carr, 1 Camp., 261; 1st Arch. N. P., 94-95. For this variance the judgment must be affirmed. If, however, the declarations set out the contract as it is proved, it would be defective and insufficient to sustain the action, for the want of an averment that the plaintiffs had worked the mine. The defendant's warranty was a special one, or rather a conditional one: if they would do the work, that is, the necessary work, they would make the money in ten days. The plaintiffs nowhere in their declaration aver that they worked the mine at all, much less for ten days. All that is said about it is that the said Joseph Starnes and Salathiel Harris have been put to great charges and expense of their money in and about the working and digging in the said mine, etc. This is not an averment. An averment is a positive statement of facts in opposition to argument or inference. 1 Arch. N. P., 320. There is no statement, as a fact, that they did work the mine, or, if so, that they worked it for ten days, or that they worked with hands in sufficient number to make $100 in ten days. We are further of opinion that his Honor was correct in his charge to the jury. He instructed them that if, from the whole conversation, the subject-matter, etc., they should come to the conclusion "that the word warrant was used as a word of high commendation and praise, so as to induce the trade, and not as importing an undertaking to make good in damages if the money was not made in ten days, the defendant would not be liable in this action. "The word warrant, as used by the parties on this occasion, was a fit subject for the consideration of the jury as a matter of fact; it was a verbal agreement in relation to a matter upon which there was room to doubt. Islay v. Stewart, 20 N.C. 297. (229) The doubt was greatly increased by a fact proved by the plaintiffs, that when the defendant urged the plaintiffs to come up in a few days and look at the mine, one of them replied: "That will do no good; the shaft is full of water. I will have to rely on your honor"; and when they did meet and complete the bargain, no mention was made of any warranty.

Upon the second count the plaintiffs cannot recover. They are still in the possession of the mine, or were at the time the action was brought, as far as the case shows; or if the lease had expired at the time of the action brought, there is no evidence that they did not enjoy the term they purchased.

PER CURIAM. Judgment affirmed.

Cited: Shaw v. Burney, 86 N.C. 334.