#### DUGALD McDUGALD v. McFADGIN AND TYSON.

Where a party had sold and delivered an article of a stipulated quality, and at a given price, an agreement to warrant it of a better quality, without any further consideration, was Held to be a nudum pactum.

Upon a special contract to deliver an article of a given description, upon which an action could be maintained, it was Held that damages could not be reduced by showing that the article delivered was of inferior quality. Aliter, where the party has to resort to a quantum valébat or quantum meruit.

Action of assumpsit, tried before Dick, Judge, at the Fall Term, 1858, of Chatham Superior Court.

For fear of misapprehending the statement of the case sent to this Court, the Reporter deems it proper to copy it literally. It is as follows: “The defendant pleaded the general issue. At the trial, the plaintiff declared specially upon the following written agreement, viz: “State of North Carolina, Moore County. The following trade is this day made between D. McDugald and McFadgin and Tyson. D. McDu-gald has sold 600 barrels of No. 1 rosin, to be delivered at the still, on the plank-road, at $2,25 per bbl. of 280 lbs. This 2nd day of September, 1854.” Signed,

A. McFadgin,

W. D. Tyson,

Dugald McDugald.

It was shown that the above contract was entered into at the still of the plaintiff, mentioned in the writing, and that there were then piled up, at that place, a number of barrels of rosin, greater than was required to fill the quantity contracted for; that within a few days afterwards, McFadgin then counted, accepted, and marked with initials of Tyson and himself a large number of barrels. The witness could not say how many were counted, but thought there might have been as many as six hundred. After those taken by McFad-gin had been rolled aside and marked, a considerable number were still left in the original pile. And to another witness, this defendant had afterwards expressed satisfaction with the purchase he had made of the plaintiff, and said he would *90make a large profit by resale. The defense was, that the rosin was not, in quality and quantity, equal to the article stipulated for ; that the quality was to be rated by the Hew York market; that if this were not so in the terms of the original contract, still the contract became such by subsequent understanding between the parties. Parol evidence of admissions by the plaintiff, tending to prove their allegations, was introduced by the defendant; also other evidence, to show that the rosin was not Ho. 1, in either Fayetteville or Hew York. For the plaintiff, it was insisted, that if the defendants accepted the rosin at the still, they were precluded from denying, in this action, that it did not fulfil the requisitions of the contract, and so, that evidence for such purpose was incompetent. It was also insisted, that the original contract could not be altered, subsequently, by any agreement made without a consideration.

His Honor admitted the evidence offered by the defendants as above, but charged the jury, that if they should find that the defendants accepted the rosin at the place mentioned in the writing, they would be precluded from afterwards questioning its substantial agreement with article contracted for. lie further charged, that after a parol contract had been entered into, as above, it was competent for the parties to alter it, by parol, at their pleasure, and that such alteration would be binding, in the absence of any consideration, for them.”

“ Yerdict for the plaintiff for $248. Rule by the plaintiff for a new trial. Rule discharged, and appeal to the Supreme Court.”

Haughton and Phillips, for the plaintiff.

Heaclen, for the defendants.

Pbaesost, C. J.

The statement of the case is so obscurely made up, and the opinion of his Honor, upon the question, which seems to be presented, is so obviously erroneous, that we have much difficulty in satisfying ourselves that we correctly apprehend the point, which was intended to be raised. .The *91evidence is not set out, but it is stated, “ parol evidence of admissions by the plaintiff, lending to prove their allegations, ■was introduced by the defendants,” who alleged that the quality of the rosin -was to be rated by the Hew York market, and if this was not so by the terms of the original contract, still, “ the contract became such by a subsequent understanding between the parties;” and his Honor held that such alteration would he binding in the absence of any consideration.

The point, as we understands, is this: the plaintiff having sold and delivered to the defendants 600 barrels of Ho. 1 rosin, at an agreed price, afterwards undertakes, i. e., warrants, without any further consideration, that the quality of the rosin is Ho. 1, according to the rates in the Hew York market. Is this subsequent undertaking binding, or is it void as a nudum pactimi ?

It clearly falls under the familiar doctrine of an executed or past consideration : suppose I sell a horse, and the next day, without any consideration, agree to warrant that the horse is sound: is not the warranty nudum pactum f

We see from the verdict, that a less amount is found for the plaintiff, than the stipulated price, and interest. As the case is to be tried again it may be well to put this matter right. If the agreement to warrant the quality of the rosin had been supported by a sufficient consideration, for instance, if the defendants had agreed to give an advance of five cents on the barrel, as a consideration of the warranty, it is clear, that in an action for the price, the damages could not be reduced by proof of the inferior quality of the rosin; Hobbs v. Riddick, 5 Jones’ Rep. 80, where the authorities are referred to and the subject fully discussed; and this conclusion announced : “ Where an action can be maintained on the special contract, the defendant is not at liberty to reduce the damages, by showing that the property was unsound and relying upon a warranty or a deceit, or by showing that the articles were of inferior quality, or that the work done was defective, or that the services contracted for, were only partially rendered. But where the plaintiff 'is driven to his quantum valebat or *92 quantum meruit, the damages may be reduced by proof of this sort, the distinction being between a partial and a total failure of consideration. In the former ease, such matter must be made the subject of an independent action.”

Pee Cueiam, Judgment reversed, and a venire de novo.