By the Court
Warner, Judge.In this case, perhaps, the charge of the court to the jury would have been more strictly in compliance with the legal rule, had it been stated to them that the measure of damages for a breach of warranty of soundness, in the sale of the negro, was the difference between the price paid and the real value of the slave, in her unsound condition ; or, if she was of no value, then the price paid for her, with interest thereon. — 2 Saunders’ Pl. and Ev. 917, and cases there cited; Curtis vs. Hannay, 3 Espinasse, 82.
■ From the evidence disclosed by the record, we are of the opinion, the plaintiff below was entitled to recover at least the price paid to the defendant for the negro, proved to have been unsound at the time of the sale, and to have died afterwards.
*593The court charged the jury that, “under the evidence, the purchase-money was the measure of damages.” Had there been a special verdict, finding the same facts as disclosed by the record in this case, we are of the opinion, the measure of damages would have been, in judgment of the law, at least to the extent stated by the court to the jury, and the charge of the court, as applied to the particular facts of this case, is not a sufficient ground of error to authorize the granting a new trial.
It was contended, by the counsellor the plaintiff in error, that the transfer of the bill of sale by Broughton to Attaway did not amount, in law, to a warranty of soundness of the negro, and, consequently, ho had not been damaged by his purchase from Badgett.
It will be time enough for us to decide that question, when it shall be properly brought before us by the proper parties. What may be the rights acquired by Attaway, under the transfer of the bill of sale to him by Broughton, we decline to express any opinion, for the reason, ho is no party to this suit, and is not now before the court. Certainly, the liability of Badgett, on his contract of warranty, is not dependent on the liability of Broughton to Attaway, on a contract subsequently made between them for the sale of the negro.
Did Badgett warrant the negro to be sound when he sold her to Broughton ? Was she sound at the time of the sale ? If not sound, what was her value in her unsound condition? These were the legitimate inquiries for the jury, on the trial ol the cause between Broughton and Badgett.
Let the judgment of the court below be affirmed.