One Drake testified that prior to the institution of this suit he was at a public place, at which plaintiff and defendant were both present; that speaking of the alleged sale, plaintiff said to defendant, "Bains, you know you warranted that slave to me"; to which defendant replied, "What if I did," or, "If I did, it makes no difference, as my lawyer tells me an executor cannot warrant a slave."
Another witness swore that on another occasion he heard plaintiff say to defendant, "You have acknowledged to me that you warranted Jack to be sound," or, "That you told me he was sound," and defendant replied, "Yes; I have always admitted that."
The slave Jack was proved to have been in the possession of defendant for some time prior to September, 1856, at which time he passed into plaintiff's possession.
One Thorn swore he heard Drake tell the defendant on the day of the sale that he would take Jack at $900 and his wife and children at $1,900; to which proposition defendant assented. Drake said, "I am in a hurry; I cannot settle now; we can do that at any time." Drake then turned to the slave, in defendant's presence, and said, "Get your things, your wife, etc., and go to my house"; he heard nothing said of any warranty.
One Harrison swore that he was called upon on the day of the sale to value the slave and that he valued him at $900.
One Strickland swore that he was present on the day of the sale, and heard plaintiff tell defendant he would take Jack at the (123) valuation of $900. He heard nothing said about warranting his soundness.
Defendant further proved, that at the time of the alleged sale he acted as the executor of one Sherrod; that it was his duty, and that of a coexecutor who qualified to Sherrod's will, to sell the slave after the expiration of a life estate, which had just expired after an existence of seven or more years, and that his coexecutor was present at the time of the alleged sale; there was no evidence that it was made know to the plaintiff that defendant was acting as executor. *Page 95
There was much testimony tending to prove the slave unsound at the time of the sale.
The judge charged the jury, among other things, that "if there was no sale, or if there was a sale and no warranty of soundness, then their verdict must be for defendant, and in this connection and under the circumstances, they need pay no attention to the fact that the defendant was acting as executor." Defendant excepted.
There was a verdict for plaintiff. Judgment. Appeal by defendant. The evidence in support of the allegation that the defendant, at the time of the sale and as a part of it, warranted the slave to be sound (for, if made afterwards, it was nudum pactum), was very slight. Two witnesses, who were present at the time of the sale, say "they heard nothing said about a warranty," and one of the two witnesses who depose to the conversations which are relied on as furnishing an inference that there was a warranty recites the words in the alternative, and, in one aspect, they do not furnish any evidence of a warranty, i. e., "You have always acknowledged to me that you warranted Jack to be sound," or, "that you told me he was sound."
This evidence is referred to for the purpose of showing that, in respect to the question, did the defendant, at the time of the sale, warrant the slave to be sound, it was of the highest importance that no room should be given for misapprehension on the part of (124) the jury.
This Court is of opinion that the defendant has good ground of complaint against that part of his Honor's charge, in which he says, "And in this connection and under the circumstances they need pay no attention to the fact that the defendant was acting as executor." We confess we are unable to apprehend the idea his Honor meant to convey by these words. An executor may bind himself individually by a warranty of soundness in selling a slave of the estate; there is no doubt of that; and it only required direct words to express it. "In this connection," that is, in reference to the allegation of a warranty, "and under the circumstances" — What circumstances? All the circumstances attending the dealing? If so, in the opinion of this Court it is very needful that the jury, in passing on the question of warranty or no warranty, should take into consideration the fact that the defendant was acting as executor, for it was a circumstance having an important bearing on the question. One circumstance was that the warranty was not proved by direct testimony, and was left as a mere matter of inference, to be drawn from a recital of conversation, in respect to which (however *Page 96 truthful the witness might be) there was danger of misapprehension. Another was, that the price of the slave had been fixed by a previous valuation, and there was no enhancement of the price by reason of the supposed warranty. Another was, that the coexecutor of the defendant was not required to join in the warranty. "Under the circumstances," therefore, it was a matter for the most serious consideration of the jury, why should the defendant have volunteered to make himself personally liable by adding a warranty as a part of the trade. There is
PER CURIAM. Error.
(125)