Claiborne County MsArchives Court.....Tutt, P.B. 1839
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Source: Reports Of Cases Argued And Determined In The High Court Of Errors And Appeals Of The State Of Mississippi
Written: 1839

Tutt's Adm'r v. M’Leod and Wife.

pages 223-226

Where an action of tort is founded on a contract, a variance in proof from the 
contract alleged, will be as fatal as in an action on the contract itself; for 
the tort founded on the contract can not be the same, unless the contract be 
the same.

Where two negroes were sold for a certain price, and warranted sound in the 
bill of sale, in an action on the warranty, for the unsoundness of one of the 
negroes, Held, that parol proof might be introduced to prove the value of the 
unsound negro, as agreed on by the parties.

ERROR to the circuit court of Claiborne county.

The action was assumpsit upon a warranty of the soundness of a negro woman 
Amy, sold by Tutt in his lifetime to the wife of M’Leod whilst a feme sole.

The defendant pleaded the general issue, and an affirmative plea, averring the 
soundness of the slave Amy, when sold, upon which plea the parties went to 
trial, and under the instructions of the court, a verdict was found for the 
plaintiffs, for 500 dollars.

The first question presented was, as to the admissibility of a bill of sale 
offered in evidence by plaintiffs, in support of their declaration. It is in 
the following words:

"Port Gibson, 9th of February, 1830. Received of Mariah W. Irwin, eight 
hundred and fifty dollars, in full payment for the following negroes, Amy and 
Burrell, both I warrant sound in body and mind, and slaves for life, and the 
title good against all claims whatsoever.	P. B. Tutt."

The declaration contained two counts, in each of which, it was alleged in 
substance, as the foundation of the action, "that the said Tutt, on the 9th of 
February, 1830, for the consideration of 860 dollars, bargained and sold to 
the said Mariah W. wife of M’Leod, whilst a feme sole, a certain negro woman 
slave, named Amy, and warranted her to be sound," &c., and concluded with 
averring her unsoundness in the usual form.

Holt, for the plaintiff in error.

Under this declaration, the bill of sale offered and read to the jury, was 
clearly inadmissible. It proves a contract wholly variant from that declared 
on. It recites a sale of two negroes, with a warranty of their soundness, for 
the entire consideration of 850 dollars. The declaration sets forth a sale of 
one negro, for the consideration of 860 dollars, and a warranty of her 
soundness. It would be difficult to conceive of a more direct conflict between 
the allegala and probata, than is here presented.

The contract of sale must be stated accurately. In Symonds v. Carr, 1 Camp. 
361, it was held, that if an agent sell to A, two horses belonging to B and C 
and warrant them, it must not be declared on as the sale of one horse only, 
the contract being entire. 2 Saunders on Pleading and Evidence, 913, tit. 
Warranty. The learned judge who tried this case, was unable to discover its 
analogy to the one decided by Lord Ellenborough in 1 Camp., it being a sale of 
negroes, and that a sale of horses.

The contract or promise declared on must be stated in its very terms, or 
according to its legal effect. 1 Chit. Plead. 303—4—5; 1 Saund. on Plead. and 
Ev. 117; 1 Term Rep. 240; Doug. 669.

The consideration may be stated in its very terms or according to its legal 
effect, and a variance will be fatal on the trial. 4 East, 464; 3 Term Rep. 
67. Where the declaration stated the consideration to be the purchase of sheep 
for 54 pounds, 11 shillings, and 6 pence, and the price proved was 54 pounds, 
12 shillings, and 6 pence, the plaintiff was nonsuited for the variance. 
Symmons v. Knox, 3 Term Rep. 67. So where the consideration stated was the 
forbearance of payment of 21 pounds, 16 shillings, and the sum proved was 21 
pounds, 18 shillings, it was holden a fatal variance. Amfield v. Bate, 3 M. 
and S. 173; 1 Saund. on Plead. and Ev. 114.

In the case at bar, the consideration averred is 860 dollars; that offered to 
be proved, is 850 dollars.

It is not proposed to discuss the errors assigned in detail. An examination of 
the record, it is confidently believed, will show the exceptions to be action 
of the court below, to be well taken.

It was certainly error to allow parol evidence to be given of what portion of 
the 850 dollars, recited in the bill of sale as the consideration for the 
purchase of Amy and Burrell, was agreed to be paid for Amy. The doubt arising 
upon the face of the instrument was obviously a patent not a latent ambiguity, 
and therefore, upon well settled principles, could not be explained by any 
thing dehors the instrument itself. In such cases, the contract as written 
must be its own expositor. The answer of the witness, however, was irrelevant 
for another reason. It established a consideration of 450 dollars, for Amy, 
instead of 860 dollars, as alleged in the declaration, and should for its 
variance from the allegata have been ejected.

The other errors assigned, require no comment; they will be fully exposed by 
reference to the record.

Mr. Chief Justice SHARKEY delivered the opinion of the court.

The action is for the recovery of damages for a false warranty in the sale of 
a negro woman. On the trial an objection was made to the introduction of the 
bill of sale because of a variance from the contract of sale described in the 
declaration. The declaration is, that Tutt, for the sum of 860 dollars, sold 
to the wife of the defendant in error, a negro woman named Amy, which he 
falsely and fraudulently warranted to be sound. The bill of sale showed a sale 
and warranty of two negroes, Amy and Burrell, for the sum of 850 dollars, and 
the question is, whether it was such a variance as should have excluded it 
from the jury?

The form of the action will not change the nature of the proof. This action 
was held by this court on a former occasion to be case, and the law is, that 
where an action of tort is founded on a contract, a variance from the contract 
alleged, will be as fatal as in an action at, the contract itself, for the 
tort founded on the contract, cannot be the same unless, the contract be the 
same. 3 Starkie on Ev. 1547; 2 Saund. on Plead. and Ev. 913. The action was on 
the contract or bill of sale, for a breach of the warranty. It was the 
warranty which created the liability, and for the breach of which the action 
was brought. The rule of law, therefore, is applicable, and the court erred in 
permitting the bill of sale to be read as evidence in support of the 
allegation in the declaration.

A witness was called to prove the price of the unsound negro, as fixed by the 
parties at the time of sale, and this was objected to also on the ground that 
the contract was entire, and being in writing must explain itself. We have not 
been furnished with authority in support of this position, and we do not think 
it well taken. The evidence was not offered to vary the contract but merely to 
show the value of the unsound negro. It was competent for the plaintiff below 
to do so, to show the criterion of damages, and the value fixed by the parties 
was the fairest estimation that could be had.

Judgment reversed, cause remanded, and venire de novo awarded and leave to 
amend.


Source: Reports of Cases Argued and Determined in the High Court of Errors and 
Appeals of the State of Mississippi, by Volney E. Howard, Reporter to the 
State; Vol. III; Containing the Cases for December Term, 1838, and January 
Term, 1839. NEW ORLEANS: E. JOHNS & CO., STATIONERS’ HALL, 1839.

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