#### JAMES WILIAMSON & CO. vs. WYATT CANADAY.

June 1843

'The principal is bound by a warranty made by his agent, in the sale of a chattel.

Where in an action for a breach of a warranty, that a slave was sound at the time of his sale by the defendant to the plaintiff, it appeared that he had taken the infection of the small pox, of which disease he soon afterwards died — Hdd that it was not error in the Judge to tell the jury that they might take the price given for the slave as a measure of their damages, there being no objection taken to this instruction on the trial, the slave having been a ■total loss to the plaintiff and the price, without any .evidence to the contrary, being considered the market value of the slave.

Nor was it error in the Judge to inform the jury that in such a case they might include, in their assessment of damages, interest on the principal sum.

Where the damages recovered in the court below exceeded the damages laid in the writ and declaration, and the variance was not discovered in that court but the defendant here insisted upon it on a motion in arrest of judgment, the court permitted the plaintiff to amend the record by striking out the excess of damages in the verdict, upon his paying the costs of the appeal.

The case of Grist v Hodges, 3 Dev. 198, cited and approved.

Appeal from the Superior Court of Law of Granville coun*350ty, at Spring Term, 1843, his Honor Judge Rattle pre-sidiDg-

This was an action of Assumpsit, brought upon the warranty of soundness contained in the following bill of sale, to wit: 111836, December the 2d. Received of James Williamson and Co. twenty two hundred dollars in full for two negro men, Ephraim, a blacksmith, about 32 years old, and James, about thirty-three years old, which negroes I warrant sound, healthy and free from all claims — and I lurlher bind myself to ever warrant and defend a good and lawful right and title for and to the said negroes, unto the said James Williamson and Co. and their heirs forever. Given under my hand the date above written. John S. Butler for Wy. Canaday,” which bill of sale was duly attested, proved and registered. The breach alleged was, that the negro Ephraim mentioned in the said bill of sale, was, at the time of the sale, infected with the small pox, of which disease he soon after died, and the plaintiff claimed as damages therelor tiro whole price paid for the said negro, with interest on the same to the time of the trial. Upon the trial it was admitted that Butler, who sold the negro and gave the bill of sale was the agent of the defendant Canaday and sold the slave as his agent; but it was contended that the suit could not be maintained against the principal upon the warranty contained in the instrument'produced. The court instructed the jury, that the action against the principal was proper, and that, in assessing the plaintiff’s damages, if they found that the slave was infected with the fatal disorder, of which he died, at the time of the sale, they might give the sum paid as the price of the negro, with interest thereon to the time of the trial. No exception was made at the time to the charge in relation to interest, nor was any specific instruction prayed on that point. The jury returned a verdict for the plaintiffs, in which they gave as damages the price paid for the slave, with interest to the time of the trial. A new trial was moved for, upon the ground taken at the trial, that the action could not be maintained against the defendant, and also upon the ground that the court had misdirected the jury upon *351the question of the allowance of interest in assessing the plaintiff’s damages. The motion was overruled, and, ment having been rendered pursuant to the verdict, the defendant appealed.

Graham and Iredell for the plaintiffs.

Badger, Maywood and Maunders for the defendant.

Rtjefin, C. J.

The objection that the action would not lie against the defendant has been abandoned in this court; and we need say no more on it, than that, as we think, it was properly abandoned. The bill of sale is not under seal, nor in the name of the agent, and is in law the contract of the principal.

Several other objections, however, have been taken. The first is, that the court erred in stating the price given for the slave to be the measure of damages ; whereas it is the difference between the sum paid, and the real value in the state in which the negro was. We believe the rule, as thus stated, is correctly expressed. Nevertheless the courtis of opinion, that the judgment, cannot be reversed on that ground. It is apparent that the slave was a total loss to the plaintiff; and that the case was so treated by all parties on the trial. The direction to the jury to give the full price or value is based upon the hypothesis, that the' slave died of the small poxr, existing at the time of the sale ; from which it followed almost necessarily that the slave had been of no value to the purchaser. For the judge and jury are both entitled to the small portion of common sense needed to know, that a slave, who died of small pox, was of no actual value between the infection and the fatal termination. It is a disease of steady continuance and rapid progress, which disables the patient from labor, and makes the necessary attention to him both troublesome and dangerous. But it was insisted that, diseased as he was, he was worth something when sold, for many recover from the small pox, and there are persons who might give a considerable sum for a slave infected with that *352disease: If the plaintiffs had sold the negro as diseased, and thereby diminished- their loss, the defendant would have been perhaps entitled to a corresponding diminution of the damages. But there was no such suggestion. The negro died the plaintiffs’, and was their loss ; and we are clearly of opinion, that they are, upon no principle, bound to account for any supposed price, which some persons might possibly have been willing to give for a slave in that condition. The purchasers were entitled to keep him •, and, if he was not of the qualities warranted, they were entitled to recover the damages actually sustained by them by reason of his unsoundness, which, in this case, amounted to the whole value of the negro, as has been already shewn, and was so considered on the trial. But it was further urged, that the price given may have been more than his value, if he had been sound ; and that the plaintiffs have only a right to have the negro made good to him, as sold to him. But, generally speaking, we believe that the prices given for property of this description may be safely taken to be the fair market value, nothing appearing to the reverse. And, in this case, it was so assumed by every body; and the defendant gave no' evidence that the value was less than the price. But, besides these particular answers to the objections, there is a general one; which is, that the defendant did not except to this part of the instruction, and therefore we must take it, that he was satisfied with it. it may, indeed, have been favorable to him; as upon other evidence that may have been given, it may have appeared, that the value of the negro, if sound, would have been more than the price.

Upon the question of interest, we do not see that it was wrong for the jury, in their discretion, to consider the use of the money as a part of the plaintiffs’ loss, as is often done in trover; and the court informed them they might, and not that they were bound to. give interest from the sale. But however that may be, under another objection of the defendant, the plaintiffs have found themselves under the necessity of giving up a larger sum than the amount of that part of the interest complained of. The objection can go only to *353interest for the time prior to notice that the plaintiffs looked to the defendant for payment, when the latter had an opportunity of making payment, and was placed in default. But the plaintiffs have been obliged, for another reason, to remit $144; which exceeds the interest accrued between the sale and the commencement of this suit, and thus puts this objection out of the-case.

On the part of thé defendant a motion was then made in this court for arrest of judgment, upon a ground which was overlooked in the Superior Court; and that is, that the damages assessed exceed those laid in the writ and declaration. To meet this objection, the plaintiffs offer to remit the excess, and pray that the judgment may be affirmed for the less sum claimed in the declaration. In Grist v Hodges, 3 Dev. 198, the court allowed an amendment by increasing the damages demanded, but required the plaintiff to pay all the costs, because, after doing so, he was much a gainer by the amendment. But in this case the costs exceed the difference between the sums laid and assessed respectively; and therefore the plaintiffs do not move to amend the writ, but to remit a part of their damages. ' We find the practice well established in England in such a case, to allow the plaintiff to enter a remittitur in the court below after error brought and errors assigned, and then have the transcript in the Court of Errors made conformable, upon payment of the costs- of the writ of error up to the time of the amendment made. It would be, of course, in our Superior Courts to allow the plaintiffs to remit; but it is not necessary to send them there for that purpose, because the statute authorizes the amendment to be made here at'once, upon such terms as the court may deem right. We think it must be on the payment of the costs in this court, which is according to the rule in England. Without the amendment the judgment would be reversed, and this defect may have led the other party to appeal. But we do not think the plaintiffs ought to pay more than the costs of this court; for it is enough that the defendant gets clear of a part of the damages. Therefore, after the amendment, the judgment will *354be affirmed for the damages laid in the declaration and the costs of the court below.

Per Curiam. Plaintiffs allowed' to amend on payment of the costs of this court, and then judgment in their favor.