March v. . Phelps

61 N.C. 560

• Court: Supreme Court of North Carolina
• Decided: January 5, 1868
• Status: Published

Opinion

Pearson, C. J.

The case is stated so vaguely that-we are unable to see whether his Honor intended to take a distinction between a warranty and an affirmation, or, if so, what that distiction is.

If the instrument declared on contained a warranty as to the age of the slave, the plaintiffs were entitled to the instruction asked for, and it was error to leave the question of construction to the jury.

We are entirely satisfied that that instrument does not contain a warranty as to the age of the slave. So far from it the warranty is confined expressly to the slave’s soundness, and to the title. It is perfectly clear that the age is set out as a mere matter of description, like the name “Allen” with which it is put in connexion. There is therefore no warranty, and this description, if known by the defendant to be false, was ground to support the count for deceit. That count was disposed of satisfactorily, and his Honor ought to have instructed the jury that the second count could not be supported because there was no warranty.

This miscarriage of the judge however is cured by the finding of the jury which puts the matter right.

There is no error.

Per Curiam. Judgment affirmed.