BUSHROD W. BELL, vs. WILLIAM D. JEFFREYS.

A ■warranty of the soundness of a slave includes in it a stipulation, that there is no defect in an eye, so as to make it unfit for ordinary purposes, and, therefore, if the slave is near sighted, there is a breach of the warranty.

Ruirpm, C. J. dissent.

íhe case of Simpson v. McKay, 13 Ire. 142, cited and approved.

Appeal from the Superior Court of Law of Wake county, at the Special Term, in June 1851, of Wake Superior Court of Law, his Honor Judge Ellis presiding.

This was an action of assumpsit, upon the warranty of a female slave to be “ sound and healthy.” The plaintiff contended, that the slave was defective in her vision. The-proof tended to shew, that it was a case ot near-sightedness, and the Court was asked to instruct the jury, that, if that was the defect complained of, it was not a case covered by the terms of the warranty. The Court declined to give this instruction, and told the jury, that, although it was a case of near sightedness, if they believed from the evidence, that the slave was thereby rendered incapable to perform the common and ordinary business in the house or field, which slaves are taught and expected to perform and are usually required of them, the defect was an unsoundness, and the plaintiff was entitled to recover damages, &c. The jury returned a verdict for the plaintiff, and from the judgment thereon the defendant appealed.

Busbee and G. W. Haywood for the plaintiff.

Miller, B. F. Moore and McRae for the defendant.

PeahsoN, J.

The plaintiff paid a sound (fair) price for the si ave, and the jury find, that, by reason of a defect in *357'her eye-sight, she was unfitted for the services ordinarily* expected of slaves. The plaintiff further endeavored to protect himself by requiring a warranty, in which, not merely one word, which is usually cons idered sufficient, but two words, “ sound and healthy” are used, for the purpose of binding the defendant, and protecting the plaintiff from loss. The word “healthy,” in its ordinary acceptation, means, free from disease or bodily ailment, or a state of the system peculiarly susceptible or liable to disease or bodily ailment. The word “ sound,” when superadded and contrasted to “healthy ,” in its ordinary acceptation, having reference to animals, means “whole,” “right,” nothing ‘‘ wrong,” “ nothing the matter with it,” “ free of any defect, by which it is unfitted for the services usually performed by animals of the like kind.’ This definition is derived from the decided cases, in which such is held to be the meaning of the word in its ordinary acceptation, when used in reference to animals. Simpson v. McKay, 12 Ired. 142, and see many cases cited by Oliphant on horses, law library. When used in reference to wood or vegetables, or other inanimate substances, “sound’’ means free of decay* or rottenness. When used in reference to animals, and applied to the mind, it means, that neither from nature or ■disease, or other causes, the mind is incapable of performing its ordinary functions. When applied to the organs of seeing, hearing, smelling, <fcc., it means, that the organ, neither from nature, disease, or other cause, has any defect, which makes it incapable or unfit to perform the services ordinarily required of it. A horse, that has had his eyes knocked out, and has got well, is healthy, and free of disease or bodily ailment. But can it be said that it is a sound horse ? He has lost the organ of sight, and is less fit for service. When applied to the body or outward structure of an animal, it means, that there is no malformation, and that the structure of the body has undergone no *358change, either from disease or accidentr whereby to render it Jess fit for service. But it does not import, that the structure of the body oí the animal is perfect and free of defect, for there is no model. Who can say what is perfection in the form of a horse ? Some are so formed as to fit them for speed,, with light weight; others for heavy burden at a slow pace. Either, put to the service of the other, would sink under it. Some are thick through the chest, others thin. Some carry their heads high, others are “ cur-necked.’' Some have high hips, others are drooped-rumped, cat ham’d, with crooked legs, (indicating an easy gate to the rider, and unfitness for harness. Some are white, others bay, and so on, through all the varieties of forms and color, as if they were so made to suit purchasers. So, a slave may be tall, or of low statue, or bowlegged, or knock-kneed, or stoop-shouldered. In regard to these matters, therefore, the rule of caveat emptor applies, and purchasers are to consult their own taste or judgment, for there is no model of perfection. But, in regard to an oi’gan, the eye, for instance, there is perfection, and if there be a defect in it, so as to make it unfit for ordinary purposes, the animal is unsound. Near-sightedness, therefore, is an unsoundness, because it is a defect in an important organ. It may be produced by disease or accident, or by looking much at small objects, and may be transmitted from parent to child. In regard to this, a distinction was taken, in the argument, by Mr. Moore, between a defect caused by disease or accident, and one from nature, but the distinction is-not a sound one. If one sells a blind horse, does it make any difference to the purchaser, whether he was born blind, or had his eyes knocked out? In this case, where the plaintiff bought a femaje slave, the unsoundness impaired the value to a greater extent, if it was hereditary, because it was more likely to fall upon the issue, than if it had been caused by accident. But it is said by Mr Moore *359this negro can see as well as many old negroes, and will it be held that a negro is unsound who can’t see as well as he did in the prime of life ? Certainly not. When one buys an old negro, and takes a warranty of soundness, if the eyes of the negro have not been injured by disease or accident, and are only impaired by the “ wear and tear ” of age, the purchaser has no right to complain, for the slave is sound, in the ordinary acceptation of the word used in reference to one of that age, because Courts, jurors, purchasers, and every one, are presumed to know the laws of nature, and contracts are to be construed in reference to such knowledge.

Ruffin, C. J.

dissent. Myopia, or shortness of sight, is, undoubtedly, an imperfection, or defect; and it may be so to such an extent, as to impair the capacity for the usual handicrafts, and therefore diminish the value of a slave. If this, then, had been an action for a deceit, in knowingly concealing this defect, and the scienter had been established, the plaintiff ought to recover; and in that ease, the price given would be material evidence, as raising a presumption, that the defect was or was not dis closed, and also as arising in the estimate of the damages. But the action is not of that kind, but is assumpsit upon a parol special contract of warranty, that the slave was “ sound and healthy and the single question is, whether the slave was rendered unhealthy or unsound by the blemish or defect mentioned, so as to amount to a breach of that contract. It is not supposed by any one, that it is so in respect of the term “ healthy.” But it is held to be so within the other term, “sound.” To me, however, it appears otherwise, and, in the absence of any opinions of medical men, I must so hold. There is no model of a perfect eye, and there are so many degrees in the power of vision, when that organ is in its natural state, as to render it impossible *360to say, that an eye, not having any disease whatever, is '’•unsound,” because the person may not be able to see as far, or objects as small, as to look as intently, and for as long a period, as some other persons. It is known, that there are more myopic persons, among the more educated and refined classes, than in others, and many more among the white than the black race, according to their relative numbers. I never knew a white person rendered unfit for the offices of life by this defect of vision : at least, not so far as not tobe within the remedial operation of glasses; and I confess it never occun’ed to me to call such a person unsound, or to consider that defect different from that of a failing of the sight from age. In neither case is the sight as good as it might be ; but the organ is in its natural condition, and the subject of no malady whatever. Indeed, there is a difference in favor of one having shortness of sight, as that diminishes with the person’s age, while the decay of vision in an eye once good is seldom, if ever, arrested, and gradually increases by the efflux of time merely. It must be remembered, that it is not the degree of imperfection in the vision, which can constitute it “unsoundness for if shortness of sight is unsoundness at all, any shortness of sight, less than that of the majority of mankind, must amount to it, and the degree of it only measures the extent of the unsoundness and the damages. It is the extravagance of that proposition, and the difficulty of applying it with any reasonable certainty and uniformity to persons, and contracts, which makes me withhold my assent from it. On the contrary, the safe rule seems tome to be, that an animal is to be taken as sound of body, each of whose organs is exempt both from decay or present disease.

Per Curiam. Judgment affirmed.