McLean v. Waddill, 50 N.C. 137, 5 Jones 137 (1857)

Dec. 1857 · Supreme Court of North Carolina

50 N.C. 137, 5 Jones 137

JAMES McLEAN v. THOMAS WADDILL.

A diseased liver, accompanied with dropsical symptoms, and aswollen abdomen existing at the time of sals, which impaired the value of a slave, whether chronic or temporary, amount to a breach of a warranty of soundness.

ActioN of covenant, tried before Bailey, J., at the last Ball Term of Cumberland Superior Court.

The action was brought for a breach of a warranty of soundness in the sale of a slave. The case sent up states that the plaintiff offered in evidence a bill of sale from the defendant, dated 22d of January, 1852, in which wer efull covenants of warranty of soxmdness.

There was evidence that, in the latter part of January, 1852, the slave in question was affected with a diseased liver, and of a dropsical appearance; his abdomen was much enlarged, and the witness, who was a physician, gave it as his opinion that the slave was unsound. The witness could not say whether the disease was chronic or not.

Another physician stated that the boy was affected with a stiffness in the legs and arms.

The defendant proved that the plaintiff sold the slave in question at auction for $316 ; that the purchaser, after owning him for twelve months, and physicking him, sold him to one McCoy, in Robeson, for $500; and that he afterwards sold for $800.

The counsel for the defendant asked the Court to charge the j my, that unsoundness which would entitle the plaintiff to recover, must be organic in its character, or of such a nature as is likely to be permanent in its duration.

His Honor charged the jury that mere temporary sickness of the'b'oy on the day of sale, or subsequent thereto, would not entitle the plaintiff to recover, but if the testimony of the physician satisfied them that, on the day of sale, the boy was laboring under the diseases stated by them, and that these affections impaired the value of the slave, the plaintiff was entitled to recover. Defendant excepted.

Yerdict for the plaintiff. Judgment and appeal.

Shepherd, for the plaintiff.

No counsel appeared for the defendant in this Court.

Pearson, J.

A copy of the bill of sale is not sent. The statement of the case sets out that it contained “full covenants of warranty of soundness.” "We are at a loss as to the meaning of the word full as here used. Possibly it means that there Avas a Avammty of soundness in all respects. But, however that may be, the defendant certainly has no right to complain of the charge. It would seem tlyit a “ temporary sickness on the day of sale,” for example, bilious fever, measles, Aidiooping cough, would amount to a breach of a full coAenant of soundness. Certainly, if a slave has a “ diseased liver,” and “ his abdomen is much enlarged,” whether the disease is chronic or not, and “ these affections impair his value,” he is unsound in the ordinary acceptation of the word ; Bell v. Jeffreys, 13 Ire. Rep. 356.

Peií CubiaM, Judgment affirmed.