Opinion
August Term, 1849.
1. If the promise declared on be an absolute one and that proved be conditional, the variance is fatal, as where the plaintiffs declared that, in consideration the plaintiffs would pay the defendant $100 for the lease of a gold mine, he would warrant that they should make that sum in ten days; and the promise proved was, if they would do the work he would warrant, etc.: Held, that the variance was substantive and fatal.
2. In an action on a verbal agreement, alleged to contain a warranty, it is competent for the jury to decide whether the word "warrant" was used by the vendor merely as a word of high commendation of the subject of the trade, or whether it was intended to import that the vendor would be liable in damages if the thing sold should not answer the description.
APPEAL from the Superior Court of Law of MECKLENBURG, at Fall Term, 1847, Pearson, J., presiding.
The plaintiff's declaration contains two counts: the first on a warranty; the second, for money had and received. The defendant possessed a lease in a gold mine which had an unexpired term of three years to run, and which the plaintiff purchased from him at the price of $100, and paid it before the beginning of this action. The declaration sets forth that at the time of making the contract and in consideration of the price to be paid, the said James Erwin "undertook and then and there faithfully promised the said Joseph Starnes and the said Salathiel Harris that he, the said James Erwin, would warrant the said Joseph Starnes and Salathiel Harris, if they would purchase his said interest in the said gold mine at the said sum of $100, they should make in ten days out of the said gold (227) mine the said sum of $100," etc. The evidence was that the plaintiffs applied to the defendant to purchase his interest in the gold mine, and the defendant said they could have it for $100. Harris said that was high; the defendant replied, "But for the death of my wife, I would not take that price; if you buy, I will warrant you to make the money in ten days. Come up in a few days and we will look at it." Starnes said: "It would do no good to look at it; the shaft is full of water. I will buy it on your honor." The defendant said: "If you will do the work, I will warrant you will make your money in ten days." Starnes said: "I will do the work." They then fixed on a day to meet to get Mr. Elms to do the writing.
Under the charge of the court there was a verdict for the defendant, and the plaintiffs appealed.
Clarke and Boyden for plaintiffs.
Osborne and Wilson for defendant.
The contract proved is different from that declared on. In the former the warranty, if made, was qualified by the understanding and express agreement of the parties, that they should do the work. The contract declared on has no such stipulation, but is an unqualified undertaking by the defendant that, if they should buy, they should make $100 in ten days. It is not necessary that a contract should be set out in the declaration in hoc verbo: a statement substantially correct is sufficient. The promise must, however, be correctly set out, and any substantive variation between the promise laid and that proved will be fatal. When a declaration stated that the defendant, on the sale of a horse, warranted him to be sound, and the proof was of a warranty of soundness everywhere except a kick on the leg, the variance was held to be fatal. Jones v. Cowly, 4 B. and Cres., 445. So where the declaration stated the warranty to be on the sale of one horse, and (228) the proof showed a sale to the plaintiff of two horses belonging to different persons by the same contract, the court held the evidence did not support the declaration. Symonds v. Carr, 1 Camp., 261; 1st Arch. N. P., 94-95. For this variance the judgment must be affirmed. If, however, the declarations set out the contract as it is proved, it would be defective and insufficient to sustain the action, for the want of an averment that the plaintiffs had worked the mine. The defendant's warranty was a special one, or rather a conditional one: if they would do the work, that is, the necessary work, they would make the money in ten days. The plaintiffs nowhere in their declaration aver that they worked the mine at all, much less for ten days. All that is said about it is that the said Joseph Starnes and Salathiel Harris have been put to great charges and expense of their money in and about the working and digging in the said mine, etc. This is not an averment. An averment is a positive statement of facts in opposition to argument or inference. 1 Arch. N. P., 320. There is no statement, as a fact, that they did work the mine, or, if so, that they worked it for ten days, or that they worked with hands in sufficient number to make $100 in ten days. We are further of opinion that his Honor was correct in his charge to the jury. He instructed them that if, from the whole conversation, the subject-matter, etc., they should come to the conclusion "that the word warrant was used as a word of high commendation and praise, so as to induce the trade, and not as importing an undertaking to make good in damages if the money was not made in ten days, the defendant would not be liable in this action. "The word warrant, as used by the parties on this occasion, was a fit subject for the consideration of the jury as a matter of fact; it was a verbal agreement in relation to a matter upon which there was room to doubt. Islay v. Stewart, 20 N.C. 297. (229) The doubt was greatly increased by a fact proved by the plaintiffs, that when the defendant urged the plaintiffs to come up in a few days and look at the mine, one of them replied: "That will do no good; the shaft is full of water. I will have to rely on your honor"; and when they did meet and complete the bargain, no mention was made of any warranty.
Upon the second count the plaintiffs cannot recover. They are still in the possession of the mine, or were at the time the action was brought, as far as the case shows; or if the lease had expired at the time of the action brought, there is no evidence that they did not enjoy the term they purchased.
PER CURIAM. Judgment affirmed.
Cited: Shaw v. Burney, 86 N.C. 334.