Starnes v. Erwin

• Decision Date: 31 August 1849
• Citation: 10 Ired. 226,32 N.C. 226
• Court: North Carolina Supreme Court
• Parties: JOSEPH STARNES et al. v. JAMES ERWIN.

10 Ired. 226

32 N.C. 226

JOSEPH STARNES et al.

v.JAMES ERWIN.

Supreme Court of North Carolina.

August Term, 1849.

If the promise declared on be an absolute one and that proved be conditional, the variance is fatal, as where the plaintiffs declared, that, in consideration the plaintiffs would pay the defendant one hundred dollars for the lease of a gold mine, he would warrant that they should make that sum in ten days; and the promise proved was, if they would do the work, he would warrant, &c.; Held, that the variance was substantive and fatal.

In an action on a verbal agreement, alleged to contain a warranty, it is competent for the jury to decide, whether the word “warrant” was used by the vendor, merely as a word of high commendation of the subject of the trade, or whether it was intended to import that the vendor would be liable in damages, if the thing sold should not answer the description.

The case of Islay v. Stewart, 4 Dev. & Bat. 160, cited and approved.

Appeal from the Superior Court of Law of Mecklenburg County, at the Fall Term 1847, his Honor Judge PEARSON presiding.

The plaintiffs' declaration contains two counts; the first on a warranty; the second, for money had and received. The defendant possessed a lease in a gold mine, which had an unexpired term of three years to run, and which the plaintiff purchased from him at the price of $100, and paid it before the beginning of this action. The declaration sets forth, that, at the time of making the contract and in consideration of the price to be paid, the said James Erwin “undertook and then and there faithfully promised the said Joseph Starnes and the said Salathiel Harris, that he, the said James Erwin, would warrant the said Joseph Starnes and Salathiel Harris, if they would purchase his said interest in the said gold mine, at the said sum of $100, they should make in ten days out of the said gold mine the said sum of $100, &c. The evidence was, that the plaintiffs applied to the defendant to purchase his interest in the gold mine, and the defendant said they could have it for $100. Harris said, that was high; the defendant replied, “but for the death of my wife, I would not take that price; if you buy, I will warrant you to make the money in ten days. Come up in a few days and we will look at it.” Starnes said it would do no good to look at it; the shaft is full of water; I will buy it on your honor. The defendant said, if you will do the work I will warrant you will make your money in ten days. Starnes said I will do the work. They then fixed on a day to meet, to get Mr. Elms to do the writing.

Under the charge of the Court there was a verdict for the defendant and the plaintiffs appealed.

Clarke and Boyden, for the plaintiffs .

Osborne and Wilson, for the defendant .

NASH, J.

The contract proved is different from that declared on. In the former, the warranty, if made, was qualified by the understanding and express agreement of the parties, that they should do the work. The contract declared on has no such stipulation, but is an unqualified undertaking by the defendant, that, if they should buy, they should make one hundred dollars in ten days. It is not necessary that a contract should be set out in the declaration in hoc verbo: a statement substantially correct is sufficient. The promise must, however, be correctly...