under the 2522d article of the Louisiana Code, assimilated the claim for a reduction in the price to the action for redhibition, and concluded that, as in the latter action, the contract could not be set aside, unless the slave was afflicted with some vice or defect which rendered him absolutely useless, or his use so inconvenient or imperfect that it must be supposed the buyer would not have purchased him had he known of his imperfections; the plaintiff could not demand any reduction for a defect which did not fall within either of the causes that furnish ground for redhibition. We think the judge did not err. The article 2522, in our opinion, places the causes for the reduction of price on the same ground as those of redhibition, and we are unable to say, from a consideration of the proof offered in this instance, that had the plaintiff been informed of the disease under which the slave labored, he would not have purchased him. Judgment affirmed, with costs. When a jury find that 18. DESDANES V. MILLER. Jan. T. 1824. 14 Martin's Louisiana Rep. 53. Per Cur. Mathews, J. This suit is brought to recover the value a slave who of a certain female slave, described in the petition, on account of a has subse- redhibitory disease with which she is stated to have been afflicted died, had a at, and before the time of sale and delivery to the plaintiff. The quently consump tion, at and answer of the defendant denies the right of the plaintiff to proceed before the time of sale directly against him, alleging that he is only surety in the warranty and trans- expressed in the act of sale, and not principal. It contains also a fer thereof, sume that ble. the court general denial, and a prayer for a jury. The cause was submitted below may fairly pre- to a jury in the court below, who found a special verdict, on which the disease judgment was rendered for the plaintiff, and the defendant appealed. was incura- The jury find that the slave in question, had the consumption at and before the time of the sale and transfer to the plaintiff, and that she died of that disease. This finding, the defendant insists, does not support the judgment thereon rendered, because the jury have not found that the disease was incurable in its nature. But as the jury do not negative the fact of its incurability, this, from their finding, and other evidence in the case, may have been fairly intended by the judge. Judgment affirmed. 19. PRICE V. BARR. Spring T. 1816. 6 Little's Rep. 216. ty of sound ness means The plaintiff declared, that the defendant, by a certain writing, A warrandid sell to the plaintiff a certain negro boy for $400, and did then and there, by the said writing, warrant the said negro boy to be sound; which said negro boy was then and there, at the time of the said sale and warranty unsound. The court charged the jury, that if the slave was unsound at the delivery, it was unimportant whether he was sound or unsound at the time of the sale. Per Cur. Boyle, Ch. J. The court below erred in their instruc tions to the jury. The court seems to predicate their opinion upon the fact, that the delivery of the boy, by the defendant to the plaintiff, did not take place until some time after the contract was made. This will not justify the opinion of the court. A contract of sale, transfers the property in the thing sold, from the seller to the perchaser, without delivery, insomuch, that an action of detinue may be maintained by the latter against the former, for a detention of the sale. 1 Chitty's Pl. 118. And if a future time be agreed upon for the delivery, the thing sold is at the risk of the purchaser, until the time of delivery, unless otherwise stipulated between the parties. 2 Black. Com. 452.; Shep. Touch, 224. The seller may, indeed, bind himself by contract, to warrant the thing sold shall continue sound after the sale; but in this case the defendant is alleged to have warranted the boy sound, and not that he should be so thereafter. that the thing warranted is sound at the time of the sale, not that it nue sound thereafter. 20. TIMROD V. SHOOLBREAD, 1 Bay's Rep. 324.; LEster v. Ex'rs. OF GRAHAM, 1 Const. Rep. 183.; MITCHELL V. DUBOIS, 1 Const. Rep. 360.; ROUPLE v. M'CARTY, 1 Bay's Rep. 480. a warranty Assumpsit for the value of a family of negroes, sold at auction The law for one hundred and seventy pounds. One of the negroes died implies the next day of the small pox, and consequently must have been of soundinfected before the sale. The plaintiff did not know the negroes slave in were infected. Per Cur. Burke and Bay, J. In every contract all imaginable fairness ought to be observed, especially in the sale of negroes, which are a valuable species of property in this country. It has been decided often in our courts, that selling for a sound price ness in a South Carolina sold for a full price. raises in law, a warranty of the soundness of the thing sold, and if it turns out otherwise, it is a good ground for the action of assumpsit, to recover back the money paid. Powell on Cont, p. 150. This warranty extends to all faults known and unknown to the seller. Verdict for the plaintiff, deducting the value of the dead negro at the time of sale. It is a contract. No parti cular form of words are 21. TRIBBLE V. OLDHAM. Dec. T. 1830. 139. 5 J. J. Marshall's Rep. Held by the court, that a warranty of soundness in a bill of sale of a slave, is an executory contract. It is a contract to do some duty. A duty results from it; and this obligation is not merely implied-it is express. The warranty, is a guarantee or assurance of indemnity. It is a stipulation, and a contract to do some act. Hamilton v. Wagner, 2 Marshall's Rep. 331. 22. DITTO V. HELMS et al., Spring T. 1829. 2 J.J. Marshall's Rep. 129. Action on a warranty on the sale of a negro girl, in the following words: "The said Helms and Shackelford do forever warrant and defend the title of the said negro, from all persons whatever, warran- claiming or to claim her ;" and likewise state, that "we have sold her to said Ditto as a sound and healthy negro." necessary to a ty. Redhibito ry defects The question was, whether the writing amounted to a warranty, or was only an affirmation of the condition of the slave. Per Cur. Robertson, Ch. J. We think it amounts to a warranty. No described form of words is necessary to constitute a warranty. Any words will be sufficient which will show that it was the intention of the parties that there should be a warranty. 23. BEAL'S HEIRS V. DE GRUY. June T. 1831. 2 Louisiana Rep. 468. The plaintiff, under an order of the court of probates, sold at should be auction two slaves to the defendant for $1160. And this suit was solved brought to compel the defendant to comply with the terms of sale. principally by the cirThe answer alleged, that one of the slaves was afflicted with an ces of each incurable disease. The testimony of the physician was, that the slave cumstan case; and was afflicted with Farices, and that it had been of long standing, and the value of the slave was diminished one third. The court unless the gave judgment for the reduction of price, and the defendant is absoluteappealed. thing sold ly useless, it is the du to make a tion of price, and not void the sale. Per Cur. Mathews, J. In support of the plaintiff's right to ob- ty of courts tain judgment, his counsel relies on the art. 2496 of the Louisiana fair deducCode, and a decision found in 8 Martin's Rep. 313. That decision was made under an article in the old code similar to that cited from the new. It appears to be difficult to reduce the doctrine of redhibition to any precise and explicit rules, calculated to answer the ends of justice in every case which may arise. Questions relating to redhibitory vices and defects in things sold, must be solved principally in relation to the peculiar facts and circumstances of each particular case. With regard to the bodily defects and vices of slaves, our law divides them into two classes: one denominated absolute, and the other relative. The former in all cases afford a legal ground of redhibition; the latter may also furnish a good cause for an entire recision of the contract of sale, or a reduction of price, according to the facts of each particular case. In the present suit, there is no evidence that shows the disease of the slave alleged to be defective, to be of the class defined as absolute. A physician, the only witness examined in relation to it, who was called by the vendee, declares his opinion, that it is not incurable; but that from its nature, so long as it endures, interruptions to the services of the slave afflicted, would be a necessary consequence; that it appeared to him, to have been of considerable duration; and from this circumstance, difficult of cure. He concludes the slave in question to be worth one third less in consequence of the diseased state, than she would be if sound. The disease appears to be an enlargement of the veins in one of her legs. On this testimony we are obliged to determine, whether or not the disease proven, constitutes a redhibitory defect. The article of the code cited, (2496) defines "redhibition to be the avoidance of sale, on account of some vice or defect in the thing sold, which renders it either absolutely useless, or its use so inconvenient and imperfect that it must be supposed the buyer would not have purchased it had he known of the vice." The article 2497 declares, that "apparent defects, that is, such as the buyer might have discovered by simple inspection, are not among the number of redhibitory vices." The true meaning of this article is not very perspicuous: that is, whether the defect should be The defect must be material. open and apparent to the buyer by a view of the object offered for sale in the manner which it is exhibited to his sight, or whether he is not bound to inspect and examine it with the care and caution ordinarily used by prudent men on such occasions. It is, however, unnecessary to give any interpretations to it in the present case, in consequence of the conclusion to which the article 2501 necessarily leads us. There is a clause in this article, which we believe did not exist in the old code, that seems to control, in a great degree, that part of the article (2496) relative to the inconvenience and imperfection of the use of things purchased. After the distinction of bodily defects or vices in slaves into absolute and relative, it is declared, that the former are those of which the bare existence give rise to the redhibitory action. But "relative vices are those which give rise to it, only in proportion to the degree in which they disable the object sold." From this we conclude, that unless the object sold be absolutely useless, it is rather the duty of courts of justice to make a fair deduction from the price, than entirely to avoid the sale, especially, when the real value of the thing bears any reasonable proportion to the price agreed upon. The diminution of value, in consequence of the disease of the slave, in the present instance, is estimated by the defendant's witness at one third less than the price stipulated; and we perceive nothing, in the whole testimony of the cause, which requires our interference, in relation to the conclusion of the court below, on the relative value of the two slaves purchased by the defendant. 24. M'FARLANE V. MOORE. Sept. T. 1805. 1 Overton's Rep .174. 2 Bay's Rep. 17. Action upon the case in the nature of a deceit. M'Farlane purchased of the defendant a negro woman for a full price, and took a bill of sale. The declaration averred, that the slave had been in a sickly state for some time, and that the defendant knew of her sickness. A physician stated that he thought her incurable, in consequence of the improper use of mercury, and that she died soon after the sale. Verdict for the plaintiff. Rule for a new trial. Per Cur. Overton, J. The questions for the consideration of the jury were, First. Was there a defect in the property sold? Second |