This was an action of assumpsit, in which the plaintiff declared against the defendant for having warranted the soundness and healthiness of a negro slave named Jim. It was shown in evidence that the defendant sold a number of negroes at public auction, among which was negro Jim, which was purchased by the plaintiff; that the defendant declared, when the negro prior to Jim was offered, that he did not warrant that negro, as he was unsound; that when Jim was offered, he remarked, "Here is a young, likely, healthy negro; what is bid for him?" whereupon the plaintiff bid the sum of $480, and Jim was stricken off to him as the last and highest bidder, and delivered to him. The plaintiff was proceeding to give evidence of the unsoundness of Jim, when his Honor remarked that he held, and should so charge the jury, that the words spoken by the defendant would not constitute a warranty. In submission to this intimation of his Honor, the plaintiff suffered a nonsuit. A rule was obtained to show cause why a new trial should not be granted, and this being refused, the plaintiff appealed. We think the rule on which this case depends is correctly laid down byChief Justice Taylor in Erwin v. Maxwell, 7 N.C. 241, that "to make an affirmation at the time of the sale a warranty, it must appear upon evidence to have been so intended, and not to be a mere matter of judgment and opinion." It is certain that warrant is not an indispensable term in contracts respecting personalty, as it is in conveyances of freehold. It is also true that a representation simply of soundness does not import, absolutely, a stipulation of the existence of that quality. But the representation may be made in such terms and under such circumstances as to denote that it was not intended merely as a representation, but that it entered into the bargain itself. If the contract be in writing, the Court cannot go out of it, but must find in its own language the exposition of its sense; and that it is the province of the Court to do. Ayres v. Parks,10 N.C. 59. But in deeds, words which in themselves import to be but words of description or affirmation have been held to amount to a covenant, because of their inutility in the deed as constituting merely an affirmation, and because of the inference from their insertion in the deed that they were so inserted as a part of the contract. Gilchrist v. Marrow,4 N.C. 410; Ayres v. Parks, 10 N.C. 59. In this last case it was also admitted that whether an affirmation was intended as a warranty is a matter of fact to be left to the jury. This, of course, refers to a transaction resting entirely in parol. The *Page 292 same doctrine is also settled in New York by many cases. Duffee v.Mason, 8 Wend., 25; Whitney v. Sutton, 10 Wend., 411. Of necessity, in verbal contracts a greater latitude must be allowed to evidence to establish the words and the meaning of parties. The evidence may consist of everything which tends to establish that the vendor meant to convey the impression that he was binding himself for the soundness of the article and that the vendee relied on what was passing as a stipulation. Among those circumstances would, of course, be the understanding, at the time, of the bystanders who witnessed the transaction and the facts on which the impressions of those persons were founded. Thus, if a person in this case had said, "I will not bid unless Stephens will (413) warrant the negro to be sound," and the defendant had replied, "He is sound," no one could be mistaken in taking that to be a contract, and not a mere representation of soundness, as the seller's words, in themselves, import. So here, when a seller at auction, who, as we must suppose, was the owner, and interested in the price to be had, and that the negroes should be bid for as sound, expressly refused to warrant one negro, and gave as his reason therefor, "that he was unsound," and immediately afterwards, in offering the next, proclaimed, "Here is a healthy negro," it might not, perhaps, be considered as straining the words beyond their obvious and natural sense, taking the whole together, to hold that there was a warranty of the latter negro. But, at the least, it is highly probable the vendor so meant to be understood and so was understood, from the contrast exhibited by him in respect to the condition of the two slaves. Besides, much may have depended upon the tone and emphasis, as well as on the words of the party and the period of his uttering them. These, we think, were all matters properly belonging to the jury, to whom they should have been submitted, with instructions that if they collected the defendant did not mean merely to express an opinion, but to assert positively that the negro was sound, and that bidders should, upon the faith of that assertion, bid for the negro as sound, then it would amount to a warranty; otherwise, not.
PER CURIAM. New trial.
Cited: Foggart v. Blackweller, 26 N.C. 240; Henson v. King, 48 N.C. 420;R. R. v. Reid, 64 N.C. 158; Horton v. Green, 66 N.C. 600; McKinnonv. McIntosh, 98 N.C. 92; Osborne v. McCoy, 107 N.C. 730; Beasley v.Surles, 140 N.C. 608; Wrenn v. Morgan, 148 N.C. 105; Harris v. Cannady,149 N.C. 82; Smith v. Alphin, 150 N.C. 427; Robertson v. Halton,156 N.C. 220; Hodges v. Smith, 158 N.C. 260; Tomlinson v. Morgan,166 N.C. 560. *Page 293
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