B. Wheeler, Esq. A PRACTICAL TREATISE on the LAW OF SLAVERY. BEING A COMPILATION of all
the DECISIONS MADE ON THAT SUBJECT in the SEVERAL COURTS OF THE UNITED STATES, and STATE
COURTS (New York: Allan Pollock, Jr. New Orleans: Benjamin Levy, 1837).
(VII.) OF WARRANTY (A) Of Warranty of Soundness.
1. Thompson v. Milburn, et al. Aug. T. 1823. 13 Martins Louisiana
Any disease with which a slave is afflicted at the time of sale, which has progressed
so far as to be incurable, may be pleaded as a redhibitory vice.
Per Cur. Porter, J. The petitioners sue to obtain the price of a slave. The
defendants resist the demand, on an allegation that the negro was unsound, and afflicted
with redhibitory diseases, incurable in their nature, at the time they purchased him; of
which diseases he died. Two gentlemen of the faculty, who were called on a consultation on
the negro, five weeks after the sale, and a short time previous to his death, state, that
they found him laboring under a chronic dysentery of long standing; a disease, which,
though it may sometimes be cured by proper regimen, generally terminates in death. Three
other witnesses state, that the negro was unwell immediately after the purchase. One
called by the plaintiff declared that the negro had been afflicted with the diarrhea, some
time previous to the period when the defendant purchased him; that the physician who
attended him had reported him well, and that he had quite a healthy appearance when sold.
That section of the civil code which treats of the defects in the thing sold, and
redhibitory vices, is by no means the most clear and satisfactory of that work; and since
its enactment, several embarrassing questions arising out of its provisions, have been
presented for decision. It is now, however, the settled doctrine in this court, that by
the term "disease incurable in its nature," must be understood any disease of
which the slave is afflicted at the time of the sale, that has progressed so far as to be
incurable. Our only inquiry, then, is, do the facts, as proved in evidence, bring this
case within the rule? The testimony already detailed, appears to us to show beyond doubt,
that the negro was diseased on the day of the sale. The evidence of the physicians
satisfies us that it was of that disease he died. Whether it had progressed so far as to
be rendered incurable, is the main, and, indeed, the only difficulty which the case
presents. The fact is not placed beyond all doubt by the testimony, nor can human
testimony ever establish, beyond doubt, at what period a disease is incurable, unless the
persons who give it are acquainted with all the means of cure which human knowledge
possesses. We, however, have it in evidence here, that the slave sunk under the disease,
and it is such as is generally incurable. This we think sufficient to throw the burthen of
proof on the other side, and the defendant, aware that it did, has labored to show, that
the fact of the disease being incurable, clearly resulted from the testimony. But in this
he has completely failed. The evidence, so far from establishing the curableness of the
disease, is entirely silent in regard to it. To supply the place of proof, the defendant
has resorted to conjecture, and has contended, that we do not know but that if a physician
had been called in earlier, the life of the slave might have been saved. We do not know
what effect an earlier application to medical aid might have had, and for that very reason
we cannot give the plaintiff the benefit of a fact which he has never proved. In the case
of St. Romè v. Porè, the same argument was resorted to, and was considered of no weight.
The court there held, that it lay on the vendor to show that the disease of which the
slave died might, under a different course of treatment, have been cured. 10 Martins
Rep. 215. Every thing in this case rebuts the presumption that the disease would have
yielded to medicine, nor do we see that there was such negligence on the part of the
vendee as to deprive him of what we conceive a just and conscientious defence. As was said
in the case just cited, physicians are frequently not resorted to until family medicines
fail. The right of purchasers to resist the payment of an object which turns out to be of
no value, should not be made to depend on their medical skill; on their knowledge that a
disease on its first appearance is a dangerous one; and that recourse must be instantly
had to professional men. That of which the slave died we know to be one that is slow in
its progress, and not apt, in its incipient stages, to excite much alarm. The jury have
found that the negro was, at the time of sale, afflicted with an acute dysentery.
We see nothing in the evidence to support the conclusion. Taking it to be correct, it
would not affect the decision of the case. Judgment affirmed. 4.. Reynaud &
Sucko v. Guillotte & Boistontaine. May T. 1823. 13 Martins Rep. 227.
Prescription in redhibitory actions runs from the time the defects in the slave are known
to the purchaser.
Porter, J. The petition sets forth on the 24th Feb. 1821, the defendant sold to
the plaintiff a negro boy named Tommy, about 23, years old, for the sum of $900, and
warranted him free from all redhibitory vices and diseases. That at the time of the sale
the slave was
afflicted with ulcers on his leg, and that the defendants knew it, but made false
representations respecting his health; that the said ulcers are of an old standing, and
that notwithstanding all the care, trouble, and expense, which the petitioners have been
put to, the slave is almost entirely unfit for the work and labor for which he was
destined: and finally, that the use of said slave is rendered so inconvenient for them,
that had they been informed of his true situation, they would not have bought him. The
answer avers, that the negro at the time of the sale was not afflicted with ulcers; that
if he was, the sale cannot be rescinded; and that owing to the want of care in the
plaintiffs, the slave has been injured in value to the amount of $500. With leave of the
court, the plea of prescription was afterwards added.
The first question to be decided, is the plea of prescription. The action was commenced
nine months and twenty-four days after the date of the sale. It is the duty of the buyer,
who brings this action after six months have elapsed, to prove when the knowledge of the
defects of the slave was acquired by him. A question arises out of the evidence in this
case, whether the prescription runs from the time the disease was known to exist, or from
the time it was ascertained to be such as would form the ground of redhibition. We think
from the latter; for until the purchaser was instructed that, he had a right of action, he
was not in delay by not bringing it. He cannot be accused of negligence while the nature
of the disease was unknown to him, and he was conferring a benefit on the vendor by
attempting to cure it. In the case of Theard v. Chretien, we said, that if the plaintiff
had proved any circumstance respecting the time when he acquired a knowledge of the vice,
we should have held it sufficient to throw the burthen of proof on the seller, to show
that he knew it earlier. In that now before us, it is proved by one of the witnesses, that
the plaintiff did not seem aware that the disease was incurable in the month of October;
and up to the 31st July, the negro was not prevented by sickness from working. So that
whether we take as the basis of this action the slave being afflicted with an incurable
disease, or having one, which though not incurable was known to the vendor at the time of
the sale, and rendered his services so difficult and interrupted, that if the purchaser
had been aware of its existence, he would not have made the acquisition. The plea of
prescription must be rejected.
5. Moores Assignee v. King et al. Aug. T. 1822. 12
Martins Louisiana Rep. 261.
The vendors ignorance of a defect in the slave does not protect him in the action
Per Cur. Martin, J. The plaintiff sues on an obligation of the defendants,
assigned him by King. The principal in the obligation pleaded it was not a negotiable one;
denied having had notice of the assignment, and averred he had an equitable defence. He
prayed, that the assignor might be made a party to the suit, and compelled to answer, on
oath, whether the sum mentioned in the obligation, was not the price of a negro woman sold
by the assignor to him? Whether the woman had not before, and at the time of the sale, a
pendulous wen, on the inside of one of her thighs, which, at times, prevented her
rendering any service at all; and whether this circumstance was disclosed at the time of
the sale? The assignor admitted, that she received the defendants obligation as the
price of a negro woman sold him, and assigned it to the plaintiff; that the woman had, at
the time of the sale, a mark on the inside of one of her thighs, which did not injure her,
nor prevent her services at any time while she was owned by her; hence this circumstance
was not disclosed to the vendee, that she did not know of any pendulous wen, as stated in
the answer; but only of the aforesaid mark, which however, she never examined.
The jury found, that the sum mentioned in the obligation was the price of the negro
woman named in the answer, who had a pendulous wen, as there stated, which rendered her,
at times, incapable of labor; a circumstance which was not disclosed at, or previous to
the sale, and that consequently, the plaintiff ought to suffer a diminution of $150 from
the price. The plaintiff had judgment accordingly, and appealed. Dr. Elmor deposed, that
about eighteen months after the sale he examined the woman, and found she had a pendulous
wen, of the size of a ducks egg, attached by a short neck to the inside of her
thigh, near the left labia pudenda. It was said, she was laid up in consequence of
an injury the wen had received while she was crossing a fence. It was wounded and
ulcerated; she was relieved. He thinks the wen must have been of ancient origin, as wens
do not reach the size of this in less than one or two years. The woman must have had it
from her infancy. From its appearance, when the witness saw it, it must have laid up the
woman from eight to ten days, and the expense of her cure could not exceed ten dollars. It
must ever be subject to injury, and must incommode her in walking. The witness thinks it
ought to be amputated, which would not be attended with danger, would confine her for
fifteen or twenty days, and would cost about thirty dollars. Were not the witness a
surgeon, he would not have given half of the price for her, on account of the wen; and as
a surgeon, he thinks he would estimate the diminution in the price, occasioned by it, at
$100. Dr. Dixon having heard Dr. Elmor give his evidence, deposed, his opinion was
perfectly the same, except that, as an individual, he would think the diminution of the
value of the slave, occasioned by the existence of the wen, at two hundred dollars.
Marshall, the defendants overseer, deposed, that the slave was smart and active.
She was sick once or twice with the fever. He never discovered that she limped. The
plaintiffs counsel contends, that as it is not proved that the vendor had any
knowledge of the existence of the wen, no diminution of the price ought to have to have
been made. Civil Code 360, art. 80. The ignorance of the vendor protects him, indeed,
against redhibitory action; but it is that action alone of which the code speaks,
in the part quoted. This ignorance will not avail in the action quanti minoris.
"If the seller was ignorant of the defect, then the buyer must keep the slave, and
the seller restore so much of the price as the value is diminished by reason of the
defect;" and so, we say, if the slave was afflicted with any hidden disease. Part 5.
3. 64. Judgment affirmed.
9. Smith v. Rowzee. Spring T. 1821. 3 Marshalls Rep. 527.
But if on the sale of a slave her state of health is concealed or misrepresented, the
purchaser is absolved from the contract.
Rowzee sold a negro girl to Smith. The contract was made at Smiths house, he
never having seen the girl. The next evening the girl was sent to Smiths house, from
which place she was immediately taken by Bishop, who had purchased her of Smith, to his
own house, about eight miles distant. He was obliged to stop with her several times on the
road, and finally was compelled to leave her at a neighboring house. She was immediately
taken back to Smiths house, and the contract between Smith and Bishop rescinded. The
girl remained at Smiths house, under the care of physicians, when she died. And
Rowzee sued Bishop for the price agreed upon at the time of the sale. Verdict for the
plaintiff. The defendant appealed.
Per Cur. Mills, J. The plaintiff was no doubt acquainted with the debilitated
state of the slave when he sold her. She had just recovered from a fit of sickness, and
the plaintiff sent her to the house of the defendant veiled, to conceal the loss of part
of her hair by fever. He said nothing about her sick or dangerous state. If he concealed
these things, he was guilty of concealing the truth, which absolved the appellant from all
obligations to pay for her, or if he gave a coloring to the facts relative to her
condition, he was guilty of misrepresentation. Judgment reversed.
10. Executors of Hart v. Edwards. May T. 1831. 2 Baileys Rep.
306. And there is no implied warranty from the price, where the purchaser is acquainted
with the defects.
Assumpsit on a promissory note, given for a slave.
At the sale, the slave looked very ill, and the auctioneer gave notice, that "he
had had the venerial, but was well, or nearly well." The defendant gave $460; and if
he had been entirely well, would have been worth $30 or $40 more. The slave died seven
days after the sale. Verdict for plaintiff. Motion for a new trial, on the ground that
there was an implied warranty arising from the price.
Per Cur. Johnson, J. The defendant had notice, at the time he purchased the
slave, that he was diseased; and the evidence shows, satisfactorily, that his death was
the consequence of that disease, or its incidents. And if he thought proper to purchase,
without a warranty against its consequences, he was bound by it. Motion denied.
4. Owen v. Ford. Nov. T. 1823. 1 Harpers Rep. 25.
In South Carolina there is no implied warranty of the moral qualities of a slave.
Per Cur. Richardson, J. In the case of Richard Smith v. McCall, 1 McCords
Rep. 220, this court decided,that there is no implied warranty of the moral qualities of a
slave arising from the mere sale and price paid. As where a slave was sold who had
committed burglary, the fact being unknown to both the seller and the purchaser. After the
sale the slave was convicted, and his ears were cropped, held, that the implied warranty
did not extend to the loss of the value of the slave by the punishment.
5. Ails v. Bowman. March T. 1831. 2 Louisiana Rep. 251. The habit
of running away is not made out by proof of one act.
Per Cur. Martin, J. There is only evidence of the slave having ran away once
while in the appellees possession, and this does not constitute a habit of
6. Bocod v. Jacobs. May T. 1831, 2 Louisiana Rep. 408.
Even immediately after the sale.
Per Cur. Martin, J. Circumstances posterior to the sale, may have some weight in
the scale of evidence, in determining on the existence of a previous habit; but we
do not think that the mere fact of running away immediately after the sale, added
to a single instance before, may be received as evidence of an anterior habit. It may be
the consequence of the displeasure of being sold, or of his dislike of the owner.
7. Duncan v. Covallus Exrs. January T. 1817. 4
Martins Louisiana Rep. 571.
If a slave be described, in the bill of sale as a bon domestique, cochier, et
briquetier, and he be proven to be a good servant, and a coachman, and brickmaker,
this will suffice.
Per Cur. Martin, J. The petition states that the plaintiff purchased from the
defendants a negro slave for $900, under the assurance they gave him, that he was a good
domestic, good coachman, and good brickmaker, and possessed of the
confidence of his former owner, whose executors they are; that there has been a gross
fraud practised on him by the defendants; that the plaintiff, fully confiding in the
assurance they gave him, signed the bill of sale, without reading it; not believing that
any thing contained therein would have been inserted contrary to, or in opposition of the
formal assurances given him, in relation to the qualities of the slave, in which he avers
he was deceived. The petition next sets forth, that the slave has made several attempts to
run away, and is by habit a drunkard and thief, and was in the said bad practices long
before the sale, at least in the knowledge of one of the defendants. It concludes with a
prayer for the recision of the sale. Urquhart, one of the defendants, being interrogated
by the plaintiff, answers, that he gave no assurances as to the virtues, vices, or talents
of the slave; that he knew nothing of him, except that he called himself a coachman. The
bill of sale was introduced as evidence of the assurances stated in the petition; the
defendants therein warrant the negro sold, free from redhibitory diseases only, as
well as of any lien or mortgage, but not as to any redhibitory vice, declaring that
they do not know the slave. In the description of him, he is stated to be 25 years of age,
a good domestic, coachman, and brickmaker: bon domestique, cochèr, et
brèquetier. Four witnesses, introduced by the plaintiff, declared, that the slave
was, from the moment he was taken into the family of the plaintiff, that is, immediately
after the sale, a worthless, idle, drunken fellow, and knew nothing of the business of a
coachman. A witness introduced by the defendants deposed, that he knew the slave, who was
the deceaseds coachman, and bore a good character; another, the deceaseds
overseer, deposed he knew the slave during a period of two years, while he belonged to the
deceased; that he was at first employed as a brickmaker, was next the deceaseds
coachman, and afterwards as the driver of his other slave; that he was a very faithful
servant, and had the confidence of his master, who was very severe to his slaves; that he
saw the negro drunk but once, and he never attempted to run away; that the deceased gave
$1800 dollars for him and his wife. On this the district judge gave judgment for the
plaintiff. The defendants appealed.
The statement of facts is composed of the bill of sale, and the depositions of the
above witnesses, and the defendants counsel has waived any objection to the want of
an averment in the petition of the falsity of so much of the bill of sale as relates to
the slave being a good coachman; he contends, that they are not liable for any but
physical or bodily defects, having declared that the warranty did not extend to moral
ones, vices; and that the plaintiff has failed in the proof of the knowledge, in
the defendants, of any circumstance which they were bound to disclose. That the
allegation, that the slave was sold as a good domestic, a good coachman, and
a good brickmaker is not supported by the proof offered; the bill of sale
representing the slave as a coachman, not a good coachman; that the
defendants, knowing the slave to have been the deceaseds coachman, might well
describe him as a coachman; that in the phrase used, the adjective, according to
the French language, governs only the substantive, which it immediately precedes, and is
not necessarily applicable to others in the phrase, bon domestique, cochèr briquètier;
that, if it be doubtful whether the adjective is to be extended to the two last
substantives, the construction must be in favorum solutionis. That these witnesses
prove, that the slave was a good domestic, since he had been selected to oversee
his fellow servants; had a good character; that he never attempted to run away, and was
seen drunk but once in two years. The plaintiffs counsel contends, that he has
proved that the slave was deficient in the quality which induced him to purchase; that he
knew nothing of the business of a coachman; that he was not a good domestic, since
four witnesses swear that he has been, ever since the purchase, an idle, worthless,
and drunken fellow. This court is of opinion, that the evidence, introduced by the
defendants, repels all the allegations of fraud made by the plaintiff, and supports the
averment they made, that the slave sold was a good domestic, a coachman, and
brickmaker; for we think, with their counsel, that the adjective bon does
not necessarily attach to any but the immediate substantive, domestique, and that
if there be any doubt, the construction ought to be made so as to lessen, rather than to
increase the obligation. Perhaps a literal translation into the English language might
present a different idea. And the rule of the common law of England is in opposition to
that which we are to follow. The common law says, verba fortius accipiunter contra
proferentem; the civil law requires the constructions to be in favorum solutionis.
Neither is the testimony of defendants witnesses much weakened by that of those of
the plaintiffs, though the latter be more numerous. These swear, that the slave knew
nothing of the business of a coachman, and is an idle, worthless, and drunken fellow. He
might conceal his skill from his dislike of a new master; a great indulgence might render
him idle, and free access to liquors might induce him to drink to excess; and he
consequently would appear idle, drunk, and worthless.
But this does not disprove what is sworn on the opposite side: that, previous to the
sale, under a severe master, he was a faithful servant, bore a good character
and possessed the confidence of the deceased; circumstances which strongly justify the
assertion of the defendants, that he was a good domestic. The depositions of the
plaintiffs witnesses do not disprove what is sworn by those of the defendants, that
the slave was a coachman and brick maker. Judgment for defendants.
8. Icar v. Suars. January T. 1835. 7 Louisiana Rep. 517.
Craziness or idiocy is an absolute vice, and where it is not apparent, will annul the
This was a redhibitory action to annul the sale of a slave, and recover back the price,
on the ground of redhibitory vice of craziness. The plaintiff alleged, that he purchased
of the defendant a slave named Kate, for which he paid $500, and in two or three days
after it was discovered the slave was crazy, and ran away, and that the vices were known
to the defendant.
The witnesses stated she was very stupid; that on being told to do one thing she would
do another; and that she was unsafe to be trusted about the house, on account of the
danger of setting fire to it; that she wandered off, and was finally put in the parish
jail of an adjoining parish, as a runaway.
The district judge gave judgment, that with regard to the mental malady of the slave,
the evidence and a personal inspection satisfied him she was so far destitute of mental
capacity as to render her either absolutely useless, or the use so inconvenient, that it
was to be presumed the buyer would not have purchased had he known of the vice. The
Per Cur. Bullard, J. It was contended, that Kate was not crazy, but only stupid,
and stupidity is not madness; but, on the contrary, an apparent defect, against which the
defendant did not warrant. Mere dulness of look is certainly apparent; but that degree of
stupidity or want of intelligence, which results from a defective organization, is rather
idiocy than stupidity. The code enumerates madness (folie,) among the absolute vices of
slaves which give rise to the action of redhibition.
Whether the subject of this action is idiotic from nativity, or is laboring under one
of the numberless derangements of an intellect originally sound, is a question which
cannot be answered, without further knowledge of her history, than the record affords. Nor
do we consider it material, inasmuch as the code has declared, that a sale may be avoided
on account of any vice or defect, which renders the thing either absolutely useless, or
its use so inconvenient and imperfect, that it must be supposed the buyer would not have
purchased with a knowledge of the vice. We are satisfied that the slave in question was
wholly, and perhaps worse than useless.