Baum v. Stevens

• Decision Date: 30 June 1842
• Citation: 24 N.C. 411,2 Ired. 411
• Parties: ABRAHAM BAUM v. ENOCH L. STEVENS.
• Court: North Carolina Supreme Court

2 Ired. 411

24 N.C. 411

ABRAHAM BAUM

v.ENOCH L. STEVENS.

Supreme Court of North Carolina.

June Term, 1842.

To make an affirmation at the time of a sale a warranty, it must appear upon evidence to have been so intended, and not be a mere matter of opinion and judgment.

Whether an affirmation in a parol contract of sale amounts to a warranty, is a matter of fact to be left to the jury, with instructions from the court according with the above rule.

The cases of Erwin v Maxwell, 3 Mur. 241. Ayres v Parks, 3 Hawks 59; and Gilchrist v Marrow, 2 Law Rep. 607, cited and approved.

Appeal from the Superior Court of Currituck county, at Spring Term, 1842, his Honor Judge MANLY presiding.

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 shewn 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 shew cause why a new trial should not be granted, and this being refused, the plaintiff appealed.

No counsel appeared for the plaintiff in this case.

Kinney for the defendant .

RUFFIN, C. J.

We think the rule, on which this case depends, is correctly laid down by Chief Justice TAYLOR in Erwin v Maxwell, 3 Murph. 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 impart, 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, 3 Hawks 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...