By the Court. —
Lumpkin J.,delivering the opinion.
It is not right that the plaintiff should recover nothing of the defendant, upon the proof in this case. When the seller refuses to warrant the soundness of property, but on the contrary, states to the purchaser that it is unsound, it should take very strong proof to relieve him from the payment of the money. We recognize the doctrine, that an action for deceit will lie, not only where the seller fails, but expressly refuses to warrant the property as sound, but, on the contrary, represents it to be unsound. But in the latter case, we repeat, the testimony should be much stronger than in the former, to *430maintain the action. Such was not the nature of the evidence in this case.
. In addition to this, the buyer had as good, if not a better opportunity of knowing the condition of the negro, as to health, than Walton. And so he admitted. After all, what were the fraudulent representations, that constitute the gravamen of this complainant ? Why, that Jim did as good, if not better work the year he was sold than a yellow fellow that Walton had as a hireling. And that he was a good worker. Have these statements been disproved? If so, how ? By showing that soon after the boy was sold, his health rapidly declined; and that he died in May, 1854, having been bought the August before.
Does this demonstate the falsehood of Walton’s representations ? The proof shows that the negro failed faster than probably either Walton or Jordan anticipated. But does not make out necessarily, a case of deceit against Walton.
True, the evidence is conflicting to some extent, still, when carefully compared, it will be found that the alleged misrepresentations of Walton, as to the condition of the slave, are not sufficiently confuted. And when we take into consideration his frank admissions, as to the unsoundness of the boy, his refusal to warrant him, the very inadequate price paid, provided the negro had been sound, the offer of Jordan to pay him §250, we are unwilling that a general verdict for the defendant should stand. It would seem that justice had not been done in this case.
Judgment reversed.