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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 occasiɔns.
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.
The defect must be material.
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 bad 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
ly. If a defect existed, was it a material one? Thirdly. Did the defendant know of the defect before the sale? They found all these facts in favor of the plaintiff, and have assessed damages to the value of the negro. It has been objected, that parol proof has been improperly received ; that the whole extent of the contract is embraced by the bill of sale ; and nothing can be implied or presumed; but suggestio falsi and suppressio veri are sufficient to invalidate a contract on the ground of fraud. And the reception of evidence to show the soundness or unsoundness of the woman, at the time of the sale, does not contradict or vary the bill of sale.
there is no
must be a
25. Smith v. MILLER. Fall T. 1812. 2 Bibb's Rep. 616. The appellee sold to the appellant, a negro boy, evidenced by Where writing, in these words: “Rec'd of Wm. Smith, of Lexington, express $300 for a negro boy named Abram, which negro is sound and warranty it healthy, and I warrant the title of said boy against the claim or verred that claims of every person whatever, as witness my hand this 26th of ant knew of March, 1810.” The appellant moved the court to instruct the soundness. jury, that if they were of opinion that the defendant sold the negro in the declaration mentioned to the appellant, with a warranty of his soundness, that the negro, at the time of the sale and warranty, was unsound, and of which unsoundness he afterwards died, that the appellant had a right to recover such damages as they should think he was entitled to from the evidence. The court refused to give the instruction, and the appellant appealed.
Per Cur. Owsly, J. This bill of sale, which affirms that the negro is sound, does not amount to an express warranty of soundness. That the appellee did not intend to warrant the negro sound, we think evident from the writing. It contains an acknowledgment of the receipt of the money for which the negro was sold ; a representation that he was sound, and an express warranty of title. Had the appellee intended to warrant the negro sound, it is most reasonable to suppose the warranty would have been so worded as to embrace it. Where there is no express warranty, but only an affirmation of soundness at the time of sale, in an action for a false affirmation, the declaration should charge that the vendor knew the article was unsound. Here there is no such averment ; and having declared on the warranty of soundness, when there is none, the judgment of the circuit coure must be affirmed.
26. Lewis v. COOPER. Feb. T. 1814. 1 Cook's Rep. 467. Extent of The court left the question undecided, whether the warranty of a warranty as to the in- title of a negro woman, would extend to the increase.
GLASSCOCK V. WELLS. 1813. 1 Cook's Rep. 262. ; S. P.
BALDWIN v. West, Hard. Rep. 50. The court held, that, upon a warranty, the vendor is liable for defects not known at the time of the sale : but he is not liable for unknown defects if he make no warranty.
28. WATERS V. MATTINGLY. Fall T. 1808. 1 Bibb's Rep. 244. And the The defendant sold the plaintiff a horse, and warranted him applies to sound. It was proved that the horse was unsound, immediately any other after he came into the possession of the plaintiff. The court, chattel.
Edwards, Ch. J, held, that where there was an express representation, which turns out untrue, it is immaterial whether the party making it knew it to be false, or not. Bibb. Prather de Pr. Dec. 153.; Pile v. Shannon, Har. 55.; Ferrin v. Taylor, 3 Cranch, 270.
The same principle (was decided by Judge Cranch, in Stewart v. Johnson, June T. 1820, circuit court U. S., Washington, (MS.)
29. HANCOCK v. Ship. Spring T. 1829. 1 J. J. Marshall's Rep.
437. Per Cur. Robertson, Ch. J. The objection to the declaration is not valid. Although a written warranty be given, an action on the case may be sustained for fraud in the warranty. Such suits are not unusual. They are sustained by authority and principle. For the simple warranty suit must be brought "ex contractu,” and of course must be covenant, if the warranty be in writing. But whether it be written or parol, suit for a fraud in making it, should be case ex delicto.
(B.) OF THE WARRANTY OF MORAL QUALITIES.
XENES V. TAQUINTO et al. April T. 1829. 19 Martin's
Louisiana Rep. 678. Per Cur. This is an action of redhibition to annul the sale of Drunkena slave, and recover part of the price for her, and to be exone- mental
, not rated from the payment of the balance due. The general issue
defect, and was pleaded in the court of the first instance, and the defendant's is not a
ground of vendor cited in warranty. The cause was submitted to a jury redhibi
tion. who found for the plaintiff. Judgment was rendered on this verdict against the defendant, and in his favor against Shift, from whom he had purchased. From this judgment, both the defendants and the party called in warranty, have appealed. The vice, to which the slave is charged in the petition to be subject, is habitual drunkenness. The evidence establishes satisfactorily the allegation. The only question, therefore, presented for our decision, is, whether the defect be such a one as authorizes the purchaser of a slave to it, to have the sale rescinded.
The purchase was made since the enactment of the late amendments to our code, and must be governed by them. The 2496th article of that work defines redhibition to he, “the avoidance of a 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 2500th article divides the defects of slaves into two classes: vices of body, and vices of character. In the 2502d, some of the vices of the body are defined, and others are stated to be contained in the 2496th article, which we have already cited. But with regard to those of character, the next article expressly declares, that they are confined to cases where the slave has committed a capital crime, where he is convicted of theft, and where he is in the habit of running away. No reference is made, as in the article relating to their bodily defects, to the previous provision which makes any disease a cause of redhibition, which renders the services of the slave so difficult and interrupted, that it is presumed the buyer would not have purchased had he been aware of them.
And that the failure to make the reference did not proceed from inattention, is manifest by the 2506th article, which succeeds that just noticed, wherein the defects in other animals are extended to the cases supposed in the 2496th. So that the cause turns on the inquiry, is drunkenness a vice of body, or of character ? Is it mental, or physical ? We think it must be classed among the vices which our code denominates those of character. It has of late, we believe, been made a question by physiologists, whether the disposition to an immoderate use of ardent spirits, did not arise as much from physical temperament as from moral weakness. In cases of long indulgence in the habit, it is quite probable the body may require a continuance of the stimulus, and that the desire for the use of it may spring as much from physical lassitude, as from moral depravity. But on this subject the court has a safer guide than the conflicting opinions of medical men. By the ancient jurisprudence of the country, the vice of drunkenness was considered one of the mind. And the terms used in our legislation must be understood in the sense in which they were used in that jurisprudence, unless another meaning be expressly given to them by legislative authority. We conclude, then, that the allegation made in the petition does not furnish ground for setting aside the sale. It has been contended, that there was fraud in the defendant concealing from the plaintiff the defect to which the slave was addicted. But unless the vice was one which furnished ground for redhibition, there was no fraud in concealing it, or, in other words, there was no obligation in the seller to communicate it to the buyer.
GAILLARD V. LABAT et al. Dec. T. 1835. 9 Louisiana Rep. 17. But a frau The plaintiff alleged in his petition, that he had purchased of the dulent con- defendant a slave, named Marie Jeanne, and her daughter Cecilia, cealment of it, will be a for the price of $1000, for a house servant; that the defendant ground for rescinding knew that the slave was an habitual drunkard, and not worthy to be
trusted ; and prays the sale may be avoided as fraudulent, and the defendant be compelled to refund the price. The jury found a verdict for the plaintiff, rescinding the sale, and restoring the slaves to the defendant, and requiring him to return the price. The defendant appealed.
Per Cur. Bullard, J. This is not an action for redhibition. The plaintiff claims a recision of the contract, not on the ground