Dukes v. Nelson

By the Court. Benning J. delivering the opinion. The questions are: first, was the Court below right, in refusing the requests to charge ? Secondly, was it right, in its charge ? The requests amounted to this; that, if there existed a breach of the warranty of soundness, made by Nelson to Dukes, the breach was a defence to Dukes, although he might have sold the negro, and transferred his bill of sale, containing the warranty; and this, whether Dukes, in buying from Nelson, did or did not, act as the agent of Weems. The charge given was, in part, this; that, even if there existed a breach of the warranty, it would be no defence to Dukes, if he had sold the negro, and transferred the bill of sale, made to him, by Nelson, unless he sold the negro, with a warranty of soundness, made by himself; because if he sold the negro, and transferred his warranty, he “waived'” his rights under the warranty, unless he himself made a similar warranty? First, was this part of the charge right? Is it true, that if Dukes sold the negro, and transferred the warranty made [462] to him, without himself making any warranty, he zuaivecl his rights under the warranty made to him? We do not think that it is. [l.] An implication that a man has, by his mere conduct, waived a right, he insisting, that he has not, is a strong measure, and not to be resorted to lightly. The case in which such an implication is allowable, must be a case in which, his conduct has been acted on by another person who would suffer, unless the implication were made; and a case, one in which, the conduct was such, that a reasonable man might be excused for acting on it. Now, did any body act on the idea, that Dukes, by selling this negro, and transferring his warranty, and by not making any warranty himself, ivaived his rights under his warranty? Did Giireath do so in purchasing as he did, from Dukes ? Of what benefit could it he to him, that Dukes should waive his rights under his warranty ? It could be of no possible benefit to him. It was possible, and probable, that a transfer of those rights to Giireath, might be of benefit to him, but not, that a waiver of them could. Still more is all this true of Weems, who bought of Giireath. The idea, that Dukes had waived the warranty, was not one that could, possibly, make any part of the inducement to him, to purchase of Giireath.. Indeed, this idea was one calculated, rather to deter both him and Giireath, from purchasing, than, to incite either to purchase. If the warranty was waived by Dukes, it was gone, and they, both, were cut off from all chance of profiting by it; whereas,if it was not waived by him, they might think, that, as they would hold under him, they would be entitled to the benefit of his warranty. Nelson could not have acted upon the idea, that Dukes, by transferring his bill of sale, waived his warranty, for whatever he did, consisted in the sale to Dukes, which, of necessity, must have taken place, before the sale by Dukes. These three persons were all there were of whom, it was possible, to say, that [463] they acted ou the idea, that Dukes had waived his warranty. Consequently, as they did not act on the idea, it must be true, that the ground of waiver on which the Court put its charge, was not sufficient. [2.] Was there any other sufficient ground on which the Court might have put this partofits charge? It was said thaty as Dukes sold the negro without warranting his soundness, he could not have- sustained any damage, by the fact, that the negro was unsound when he bought him. But whether this is true, or not, depends entirely on the price at which, he sold the negro. It might be, that he sold the negro at half price, and that this fall in the price, was caused by the negro’s unsoundness. If this was the case, the unsoundness of the negro, caused him to sustain loss to the amount of half the price he paid for the negro. It is to be presumed, that he did sustain a loss to some extent; for, it is to be presumed, that an unsound negro sold without a warranty of soundness, will not bring the full price of a sound negro. We must presume, then,y?rima facie, that Dukes, although himself, not warranting the soundness of the negro, sustain- . ed some degree of loss by reason of his unsoundness; that he got for him, less than he gave. There is, then, no ground here for the charge. [3.] Did not Dukes’s transfer of his bill of sale, to Gilreath, carry all of his rights under the warranty to Gilreath ? It carried uoue of them, to Gilreath. The bill of sale was not a transferable thing. This was decided by this Court, in Broughton vs. Badgett, 1 Kelly, 76; a case in every essential respect, like the present. There, it was held, that the warrantee retained his rights under the warranty, notwithstanding, that he had transferred his hill of sale containing the warranty, to the person to whom he sold the slave. Such was the decision. I would not be understood as meaning to say, that there could not be a case in which, the vendee of personal property, might not be entitled to the benefit of a warranty made [464] to bis vendor. I can conceive of cases in which, the vendee would, in my opinion, be entitled to the benefit of a warranty made to his vendor. Certainly, however, the legal title to the warranty will remain, in all cases, with the vendor, as, a warranty is not a negotiable thing at law. [4.] It was argued, that the only remedy for a branch of a warranty, is an action on the warranty; that such breach is matter that is not pleadable in defence, to an action for the price. And there are a few early cases that look this way. But they are not sufficient to stand a moment, against the cases on the other side. The cases on that side, are numerous; they go back in a long series, far into the past; failure of consideration being an old defence; they are not confined to any one place or country, but exist wherever the common law prevails; they have in their favor the whole of the argument from expediency, for they make one action, accomplish the work of two actions. We cannot yield to this argument. [5.] Hitherto, I have been proceeding, with an eye to that branch of the evidence which made Dukes, a principal in the purchase of the negro. It is time to turn to the branch of the evidence which makes him an agent in the purchase; the agent of Weems. Supposing him to have acted, in the purchase, as the mere agent of Weems, was that a thing, to exclude him from the defence of a breach of the warranty? We think not. His acting as agent, if he so acted, was, as far as appears, unknown to the vendor, Nelson. It does not appear, that his principal’s name was disclosed to Nelson. At any rate, Nelson’s administrator, the plaintiff in the suit, has elected to treat him as principal, and he has made no objection to being so treated. This estops the plaintiff from saying, that he was not principal, and therefore, that the loss was not his, but was Weems’s. [5.] Again, suppose we exclude Dukes from the defence, on the ground, that he acted as agent; as the agent of Weems. In that case, we give the right to sue for the breach of the [465] warranty, to Weems; and consequently, the only effect will be, that we make Dukes pay Nelson, Weems pay Dukes, and Nelson pay Weems. So, the loss will at last fall on Nelson. Why, then not let it do so at first ? Why not let Dukes, when sued for the price, set up the breach of the warranty for the benefit of Weems, his principal ? We see no reason why we should not. Of. different routes in law, that route ought to be taken, which is the shortest, the quickest, and cheapest. Upon the whole, then, we do not see any ground that, in ■our opinion, was sufficient to justify the part of the charge in question. What the Court should have charged, is, we think, about as follows: That a breach of the warranty, was matter which Dukes had the right to rely on, in his defence, and this, whether, in selling the negro himself, if he did sell the negro, he sold him, with, or without a warranty ; that, if he sold the .negro without a warranty, the measure of his damages, was the difference between what he gave, and what he got, for the negro; that if he was acting merely as the agent of Weems, then the measure of the damage, was the loss sustained by his principal, Weems; and that the note ought to be reduced by a sum equal to what the jury might find the damage to be. From what has been said, it must be apparent, that we consider the requests as, in the main, proper. It is needless, therefore, to say anything further as to them. Judgment reversed.