BOYDEN, J.
In this case the plaintiff offered evidence to show that the next morning after the trade, between day-light and sun-up plaintiff's son discovered that the mule was diseased, and running copiously at the nose, his legs and throat swollen, and his head drooping. The defendant called on Thomas J. Coppy as witness, who stated that he, at the time of the trade and after, lived in the same town with the plaintiff, (which is quite a small village) and within fifty yards of the plaintiff. This witness was then asked, "How long after the sale by Green to Horton of this mule, did you first hear that it was was diseased. This question was objected to by the plaintiff, but the Court admitted it, and he answered about two weeks.
This we think was some evidence at least, tending to contradict the plaintiff, whose statement went to show that the mule the morning after the purchase, was pretty far gone with the glanders, of which disease the mule and five others of his stock died: a disease among stock quite as alarming to the owners as small-pox among men. The case of Newby v. Jackson, 7 Jones, 351, is a full authority for the admission of this evidence. The only other question made in this Court was, that the language used by the parties, if believed, constituted a warranty in law; that His Honor ought so to have instructed the jury. The evidence which plaintiff insisted on amounted to a warranty in law, was as follows:
Horton said, "what will you take for your mule?" Green said, "one hundred and twenty-five dollars." Horton said, "I can't give one hundred and twenty-five dollars; but if it is all sound and all right, I'll give one hundred dollars." Green replied, "it is all sound, and all right; and I will take one hundred dollars, if you will pay the money down." Horton replied, "that he could not pay the money all down, but offered to pay twenty-five dollars down and to give his note with security for the balance, to which Green assented."
It was this language which passed between the plaintiff and defendant which the plaintiff's counsel contended constituted a warranty in law, and that His Honor should so instruct the jury.
His Honor declined so to instruct the jury, but said to the jury, "it is for you to say what the meaning and intent was between Horton and Green, from the testimony of Horton and Brown and the other testimony in the cause, and to determine from the language used, the spirit in which the parties met, and all the other circumstances, whether it was Green's intention to indemnify Horton from all damages that might arise from unsoundness of the mule. We think His Honor was right in refusing the instructions asked, and that the instructions given were proper.
In the case of Baum v. Stevens, 2 Ire. 411, the late Chief Justice Ruffin, in speaking of a parol warranty, says: "We think the rule is correctly laid down by Chief Justice Taylor in the case of Erwin v. Maxwell, 3 Murphy, 241, that to make an affirmation at the time of sale a warranty, it must appear upon evidence, to have been so intended and not to be a mere matter of judgment and opinion. It is certain that a warrant is not an indispensable term in contracts respecting personalty, as it is in conveyances of freehold.
It is also true that a representation simply of soundness, does not import absolutely a stipulation of the existence of that quality, but a representation may be made in such terms and under such circumstances, as to denote that it was not intended merely as a representation, but that it entered into the bargain itself.
In the case of Ayers v. Parks, 3 Hawks 59, Hall, Judge, says: "that whether an affirmation at the time of sale was intended as a warranty is a matter of fact to be left to the Judge. Of necessity, in verbal contracts." says Chief Justice Ruffin, "greater latitude must be allowed to evidence to establish the words and the meaning of parties, the evidence may consist of everything which tends to establish that the vendor meant to convey the impression that he was binding himself for the soundness of the article, and that the vendee relied on what was passing as a stipulation."
Among these circumstances, even the the tones, looks, gestures and the whole manner of the transaction, with all the surroundings, would be competent evidence for the jury to consider in making up their verdict.
The doctrine upon special contracts of personalty, and whether the question of warranty is to be decided by the Court or left to the jury with proper instructions, has been too long and too thoroughly settled in our State to be now overturned by decisions in other Courts. We adhere to the decision of our own Court upon these questions.
This case was argued with much ability, and many authorities cited by plaintiff's counsel, and we admit that they cannot all be easily reconciled, but they fail to satisfy the Court that our decisions are all erroneous, or that His Honor erred in his instruction to the jury upon the question of warranty.
There is no error.
PER CURIAM. Judgment affirmed.