Burke County NcArchives Court.....Samuel Maxwell, E. L. Erwin V. 1819
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Deb Haines http://www.genrecords.net/emailregistry/vols/00003.html#0000719 January 30, 2009, 12:34 pm

Source: Nc Reports
Written: 1819

E. L. Erwin v. Samuel Maxwell

From Burke

May Term 1819

Warranty in the sale of a horse. When the purchase money was about to be paid, 
the buyer asked the seller, if the horse was sound; the seller answered, he 
was. The declaration charged that the horse was unsound, lame, stiff and 
defective in all his limbs. Plaintiff non-suited; for

1. The conversation about the soundness took place after the contract of sale 
had been entered into.

2. The answer of the seller to the question of the buyer, whether the horse 
was sound, does not amount to a warranty; for, to constitute a warranty, it 
must be express; it will not be implied by a mere affirmation of the quality 
or kind of the article sold, nor by a mere affirmation of the value, nor where 
the subject is of dubious quality, on which common judgment might be deceived: 
and the reason is, that as a warranty renders the party subject to all losses 
arising from a failure of it, however innocent he may be, Courts of Law are 
cautious in creating an obligation of such extent.

Without a warranty by the seller, or fraud on his part, the buyer must stand 
to all losses arising from latent defects; the principle on which the common 
law proceeds, being, that the purchaser ought to apply his attention to those 
particulars which may be supposed to be within the reach of his observation 
and judgment; and the vendor to communicate those particulars and defects 
which cannot he supposed to be immediately within the reach of such attention.

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

This was an action of assumpsit on a warranty in the sale of a horse. The 
declaration charged that the Defendant did warrant and affirm to the 
Plaintiff, that the horse was sound, except that he had been badly cut for the 
hooks, which gave his eyes a bad appearance, and it further charged that at 
the time of the sale and warranty the horse was lame, stiff and defective in 
all his limbs and feet, so that he could not travel well, and became of little 
use to the Plaintiff.

The evidence on the trial related to a conversation between the Plaintiff and 
Defendant, when they went together into a room to pay and receive the purchase 
money, after the agreement relative to the sale had taken place; upon which 
conversation, the Plaintiff asked the Defendant if the horse he was about to 
let him have was sound, to which the latter answered, he was. Afterwards the 
Plaintiff told the Defendant that some persons disliked the appearance of his 
eyes; to which the Defendant answered, his eyes were good, for any thing he 
knew to the contrary, that, he had been badly cut for tin hooks, and advised 
the Plaintiff not to let any person have any thing to do with him, except a 
skillful hand. It did not appear in evidence whether the conversation 
respecting the eyes, took place before the payment of the money, or at the 
time.

The presiding Judge nonsuited the Plaintiff; a rule for a new trial being 
obtained it was sent to this Court.

Taylor, Chief Justice: A few plain principles have been established by many 
decisions, on the subject of warranty, the application of which to this case 
will free it from difficulty. As a warranty renders the party subject to all 
losses arising from a failure of it, however innocent he may be, much caution 
has been exercised in Courts of Law in creating an obligation of such extent. 
Hence the rule that on the sale of chattels, there is not any implied 
warranty, except as to the title; that to constitute a warranty it must be 
express, and will not be implied by a mere affirmation of the quality of kind 
of the article sold, nor by a mere affirmation of the value, nor where the 
subject is of dubious quality, on which common judgment might be deceived. 
Therefore, when an auctioneer, on the sale of pictures, set in the printed 
catalogue opposite to each, the name of a painter, it was determined not to 
amount to a warranty of the picture's being the work of such artist. 2 Rep. 
272. In every case upon the sale of a chattel, where there is neither a 
warranty nor deceit, the buyer purchases at his peril. In the case of Chandler 
v. Lopez, Cro. Jac., it was determined that for selling a jewel, which was 
affirmed to be a bezoar stone, when it was not, no action lay, unless the 
Defendant knew it was not a bezoar stone, or had warranted it to be one. And 
in Packinson v. Lee, 2 East., 314, it was decided that a fair merchantable 
price did not raise an implied warranty that, if there be no warranty, and the 
seller sell the thing such as he believes to be without fraud, he will not be 
liable for a latent defect. Lord Coke says, "that by the civil law, every man 
is bound to warrant the thing that he selleth, albeit there be no express 
warranty; but the common law bindeth him not, unless there be a warranty in 
deed or in law." And Fitzherbert, in the Nat. Brew, 94, c. says, "that if a 
man sell wine that is corrupted, or a horse that is diseased, and there be no 
warranty, it is at the buyer's peril, and his eyes and his taste ought to be 
the judges in that case." It appears from all the authorities, that without a 
warranty by the seller, or fraud on his part, the buyer must stand to all 
losses arising from latent defects; and a contrary rule is no where laid down. 
The principle, on which the common law proceeds, being that the purchaser 
ought to apply his attention to these particulars which may be supposed to be 
within the reach of his observation and judgment, and the vendor to 
communicate those particulars and defects which cannot be supposed to be 
immediately within the reach of such attention. The purchaser may always 
provide against his own want of vigilance or skill, by requiring the vendor to 
warrant, saying, when the money was paid, that the horse was sound, did not 
amount to a warranty; to make an affirmation at the time of the sale, a 
warranty, it must appear by evidence to be so intended, and not to have been a 
mere matter of judgment and opinion. 3 Term., 57; Carth. 90. Salk. 210. Here 
the Plaintiff seemed content with the assertion of the Defendant as to the 
soundness of the horse, though he had been previously advised to take a 
warranty. If then, the Defendant asserted only what he believed, and the 
contrary does not appear; and the Plaintiff chose to run the risk of being 
able to prove that the Defendant knew of the unsoundness, when he might have 
procured an indemnity, with or without that knowledge, there is neither 
hardship nor injustice in throwing the loss on him. 

The nonsuit must, therefore, stand, and the rule for a new trial be discharged.

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