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is to say, the vendor must be ignorant of, or disclose the existence of the vice. In the present case, it is clear, that the disposition of six of these slaves to run away was known to the vendor, and that he did not communicate it to the vendees. The understanding of the parties, that the slaves should remain on trial during a fortnight, with the vendees, at the risk of the vendor, in case they ran away, does not enable us to conclude, that the intention of the parties was, that if after that period, they, or any of them ran away, and the vendees could prove a previous habit of running away, they should not avail themselves of the legal warranty. The existence of this habit in the six slaves, of whom the sale is rescinded by the judgment of the parish court, clearly appears from the evidence on the record, particularly the deposition of the jailor, and the orders of the mayor.
The defendant was bound, at the inception of the suit, to reimburse the price of these slaves ; but this price was not fixed by the parties, and required to be liquidated. The parish court, therefore, erred in allowing interest from the date of the judicial demand. But no hire can be allowed. Both parties complain of the valuation made in the parish court, the vendor thinking it extravagant, and the vendees insufficient. Perhaps this is the best evidence of its correctness. It does not appear to us so materially incorrect as to authorize our interference.
It is, therefore, ordered, adjudged, and decreed, that the judgment of the parish court be annulled, avoided, and reversed ; and this court, proceeding to render such a judgment as, in its opinion, ought to have been rendered in the parish court, it is ordered, adjudged, and decreed, that the sale of the negroes, Lindor, Tony, Sunday, Isaac, Horace and Boucaud, be rescinded, and made null and void ; and that the plaintiffs do recover from the defendant the sum of six thousand five hundred dollars, with costs, in the parish court, and that the plaintiffs pay costs in this court.
13. CHRETIEN V. THEARD. June T. 1824. 14 Martin's Louisiana
Rep. 582. Per Cur. Porter, J. This is a redhibitory action, in which the Stealing plaintiff seeks to return a slave he purchased from the defendant, need not be
accompaand get back the price. The defect allegd, is, that the slave is a nied with
force to thief, and addicted to robbery. And it is further charged, that the constitute a
redhibitory vendor knew he had those vices, at the time he sold him. Several
defect. grounds of defence have been presented in this court against the
right of the petitioner. The second point of the defendant is, that the vice complained of, is not a redhibitory one ; that the stealing must be accompanied with force, to constitute this defect. If this construction be the true one, it will lead to the most inconvenient results, and open the door to great and numerous frauds. This consideration, we are aware, is not of much importance, if the law be clear and free from ambiguity; but if otherwise, it is entitled to much weight in aiding our conclusions as to the purport and true meaning of the statute. The words of the law in the French text, are “si l'esclave est adonné au vol;" in the English “if he is addicted to robbery.” Vol is the generic term, in the French language, for thest of every kind, and, it is admitted, embraces larceny. Robbery, it is said, means the offence known to our criminal law, as such. And it is urged, that the English version shows, that the word vol in the French was used in the restricted sense of taking the property of another by force. Our code was passed previous to the enactment of the constitution, and the legislature in adopting it, directed that the French and English texts must be taken together; and that they should mutually serve for the interpretation of each other. 2 Martin's Dig. 98. Whenever, therefore, the expressions can be reconciled, and made to harmonise with each other, it is the duty of those on whom the task of construing them is devolved, to do so. When they cannot, such a construction must be adopted as does violence to neither, and gives effect to both. Thus, if the French part of the law made epilepsy alone a redhibitory defect, and the English had provided only for leprosy, we should hold, that both these diseases constituted vices for which the sale could be annulled; because both were provided for ; and because at that time the legislative will expressed in either language, became a law. In the case of Touro v. Cushing, decided at the last July term, this principle was applied to the 122d article of the code, 369. The text there presented two distinct ideas to the mind, and we thought a compliance with either, sufficient on the part of him who claimed the benefit of the law; otherwise, as was there said, the statute in relation to that provision, would be a decoy, instead of a beacon. And where they are not entirely different, as in the case before us, where the word in one text includes the meaning used in the other, and means something more, we must, on the same principle, take that which presents the most enlarged sense, because, in doing so, we give full effect to both clauses.
(C.) OF THE WARRANTY OF CAPACITY.
1. STRAWBRIDGE v. WARFIELD. April T. 1832. 4 Louisiana
Rep. 20. Per Cur. Porter, J. The question is, whether warranty on the part of the owner of the property sold (slaves) be of the essence Warranty
is not the of the contract of sale; and this question the law requires us to essence of answer in the negative. Warranty is in the nature of the contract of sale. That is, the law, implies it, if a contrary agreement be not made. But it is not essential to such a contract. The vendor may stipulate, he will not warrant at all; or he may covenant that bis warranty shall be restricted; or be may contract that his vendee shall accept the warranty of a third person.*
The evidence may prove
2. Polie v. LALANDE et al. April T. 1829. 19 Martin's Loui
siana Rep. 648. Porter, J., delivered the opinion of the court. This is an action In a redhi
bitory acof redhibition. The defendant pleaded the general issue. The tion the
plaintiff slave was sold as a washer, ironer, and cook. shows, that she possessed these qualities, very defectively, if at
ran away all. The jury found a verdict for the plaintiff, reducing the price after he
was pur$170. The defendants have appealed, and the plaintiff has re- chased. quired that the judgment be amended by the court decreeing a recision of the sale. The evidence is contradictory, and does not authorize us to disturb the verdict. The only questions which require our particular attention are those presented by the two bills of exceptions, taken on the trial by the defendants. The plaintiff offered evidence to prove that the slave had run away after he had purchased her, and the court admitted it. We think there was no error in doing so. The proof in itself would not be sufficient to establish the fact, without showing that the slave had run away
* An express warranty does not guard against that which can be discovered by sight; as if a horse be warranted perfect, and he wants an ear or a tail, Butterfield v. Burroughs, Salk. Rep. 211. But an express warranty extends to every kind of soundnes; known and unknown to the seller. 15 Petersdorff's Abr. 374.
Upon the sale of a ship advertised as copper fastened, with all faults, the court held, that these faults meant, faults of a ship, which might have been consistent with that description of vessel; and that not being a copper-fastened ship at all, it was a breach of the warranty. Shepard v. King, 3, B. & A. 240.
while in the possession of the vendor. But if the facts in regard to the absence of the slave antecedent to the sale were in any way equivocal, subsequent acts might aid in ascertaining their true character. The evidence, too, might be important, in showing a continuance of the habit which existed at the time of the sale. It has been the constant practice in actions of this kind, to admit such proofs. 7 Martin's Rep. 43. ; 10 Ibid. 659. Judgment affirmed.
(D.) OF THE WARRANTY OF TITLE.*
Liability of Guaranty of the title of a mulatto boy purchased by the plainsurety, on warranty of
tiffs. It being ascertained the boy was free, the present action title.
was brought, to recover the amount of expenses incurred by the plaintiffs while the boy was in their possession.
The Court. Mathews, J. The surety of the vendor of a slave who warrants only the title, is not liable for expenses to which the vendee is put in consequence of the slave being affected with the redhibitory vice of running away; but he is responsible for damages incurred in case of eviction.
It was held, in Mackbee v. Gardner, 2 Har. & Gill's Rep. 176, that it was a familiar principle, that there exists, in every sale of personal property an implied warranty of title. And the same principle was recognized in Chism v. Woods, Hard. Rep. 531.; Osgood v. Lewis, 2 Har. & Gill's Rep. 495. In Defresne v. Trumper 1 Johns. Rep. 274, it appeared the defendant sold the plaintiff a horse, which was recovered of the plaintiff by a third person. The defendant contended the plaintiff could not recover, as there was no warranty, or fraud in the sale. But the court said, we are of opinion that an express warranty is not requisite; for it is a general rule, that the law will imply a warranty of title on the sale of a chattel. The rule is laid down in 2 Black. Com. 451., that by the civil law, an implied warranty was annexed to every sale, in respect to the title of the vendor; and so too, in our law, a purchaser of goods and chattels may have satisfaction of the seller, if he sells them as his own, and the title proves deficient without any express warranty for the purpose.
And the same rule prevails in Great Britian. In contracts for the sale of personal property, the vendor impliedly warrants his title to the article he sells; and if he has no title, he is liable for a breach of this implied promise. 15 Petersdoff's Abr. 372. And the rule applies whether the seller is in possession of the thing sold or not, Ibid. ; 3 T. R. 15. ; Rew v. Barber, 3 Cowen's Rep. 272. The Oneida Manufacturing Society v. Lawrence, 4 Cowen's Rep. 440.
Of a sale by vendor of the slave having concealed from the purchaser, no mat- a broker. ter with what intention, the fact of his being the real owner, makes him responsible in warranty? We think not. It is clear, that the plaintiff could not now have the contract avoided on the ground that the defendant was acting merely as a broker, and was not the owner, as plaintiff supposed. For error in person with whom he contracted could not enable him to do so; the consideration of the person not being the principal cause of the contract. If the plaintiff could not have the contract set aside, we can discover no legal grounds on which it can be changed, and a subsiduary warranty granted to the buyer, for which he did not contract.
3. Scott et al. v. Scott's ADM’R. Spring T. 1820. 2 Marshall's
Rep. 217.; S. P. REw v. BARBER, 3 Cowen's Rep. 272. The declaration alleged, that the defendant's intestate sold to On the sale the plaintiff a slave, and that he undertook and promised that he by a perso
of a slave had a good title and lawful right to sell ; and avers that he had no having no
title, and title or right to sell, but that the title was in one Robertson. Plea, without the statute of limitations.
warranty, It appeared the slave was sold to the plaintiffs more than five mire per years before the commencement of the action, but that within five son is neyears Robertson had recovered the slave of the plaintiff.
cessary to give the
vendee his The circuit court instructed the jury, that if the defendant's in- right of actestate had no title to the slave when he sold him to the plaintiffs, tion; the
right to sue the statute of limitations began to run from the time of the sale originates and delivery. But the jury found for the plaintiffs ; and the court deceit of granted a new trial, and the plaintiffs excepted. On the second the seller. trial the jury found for the defendant, and the plaintiffs brought error to this court.
Per Cur. The Chief Justice. It is certainly true, that the statute could not have begun to run until the cause of action accrued ; and if, as was contended on the part of the plaintiffs, a recovery under an adverse title was essential to give them a right of action, it would follow, as a necessary consequence, that the instruction given by the court to the jury was erroneous.
But it cannot be admitted that the recovery was necessary to the plain