Kyle v. Clark

3 Ky. Op. 395, 1869 Ky. LEXIS 450

• Court: Court of Appeals of Kentucky
• Decided: February 8, 1869
• Status: Published

Opinion

Opinion of the Court by

Judge Williams:

December 31, 1864, Kyle sold, to Clark a negro slave girl for $75 and gave a bill of sale evidencing that he had sold to Clark “a black girl of yellow complexion named Fannie aged about seventeen years she is in good health and a slave for life.” The girl having died within a few months Clark sued and recovered the consideration paid and for his trouble and expense or for a breach of warranty.

It is insisted that the words in said bill of sale that- “she is in good health and a slave for life” do not import a warranty,- and therefore appellant could only be liable for a fraud.

Such words could only have been used for one of two purposes,, that is, either as a description of the thing sold, else, as a contract of its condition.

The description of the age and color and sex had been previously recited and sufficiently identified her. The language is then changed from description to affirmation of condition as to health and term of servitude, and as this court said in Dickens vs. Williams et al, 2 B. Mon. 37J±, such an affirmation imports a covenant of warranty that it was so, and should be deemed as a part of the contract, and, therefore, stipulatory, especially when unqualified by anything else in the writing.

The true inquiry then was as to the health of the slave at the date of the sale and not whether the vendor knew she was unhealthy and concealed it, or falsely represented she was healthy knowing otherwise. We see no error in the judgment hence it is affirmed, with damages.

Kyle, Gaither, for appellant. C. A. Hardin, for appellee.