(VII.) OF WARRANTY.* (A) OF WARRANTY OF SOUNDNess. 1. THOMPSON V. MILBURN et al. Aug. T. 1823. Louisiana Rep. 468. 13 Martin's with which a slave is afflicted at sale, which gressed so the time of has pro Per Cur. Porter, J. The petitioners sue to obtain the price Any disease 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, a redhibitothough it may sometimes be cured by proper regimen, generally ry vice. terminates in death. Three other witnesses state, that the negro * A warranty, is an indemnity against the consequences of any defect in the quality or value of the thing sold. And a representation made at the time of sale is a warranty, if so intended. Pasley v. Freeman, 3 T. Rep. 57. In general, no implied warranty arises. Parkinson v. Lee, 2 East's Rep. 314., unless there be a fraudulent concealment. Jones v. Rouden, 4 Taunt. Rep. 847. And whether there is a warranty or not, should be submitted to the jury. Whitney v. Sutton, 11 Wend. Rep. 411. Some of the principles of warranty may be thus stated. Warranty is an indemnity for any defect in the thing sold, as was before stated. And they are express or implied. Borrekens v. Berons, et al., 3 Rawle's Rep. 32. And all warranties must be made at or before the sale. Sweet v. Colgate, 20 Johns. Rep. 196. Warranties are limited, and do not guard against that which may be discovered by sight, as if a horse be warranted perfect, and he wants an ear or tail Butterfield v. Burroughs, Salk. Rep. 211. And it may be laid down as a general rule, that the vendor is not liable for the quality or soundness of the goods or article sold, unless there be an express warranty, or a fraudulent concealment or misrepresentation. Wilson v. Shackford, 4 Rand. Rep. 5.; Williams v. Stafford, 8 Pick. Rep. 250.; Sweet v. Colgate, 20 Johns. Rep. 196. The exception in the United States, is, in South Carolina, where they have adopted the civil law, which is governed by the maxim that "a sound price requires a sound commodity." Barnard v. Yates, 1 Nott & M'Cord, 142.; Timrod v. Sholbred, 1 Bay's Rep. 324. An express warranty of soundness extends to every kind of soundness, known and unknown to the seller, and if it be false, the buyer has his remedy on the warranty. Onslow v. Eames, 2 Stark N. P. C. And where there is an express warranty, all implied warranties are excluded; for the law will not imply what is not expressed in a formal contract. Lanier v. Auld, 1 Murphy's Rep. 138. 81. far as to be incurable, may be pleaded as was unwell immediately after the purchase. One called by the plaintiff declared that the negro had been afflicted with the diarrhoea, some time previous to the period when the defendant purchase d 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. ourt 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 Martin's Rep. 215. Every thing in this case rebuts the presumption that the disease would have yielded to medi The cine, 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. 2. THOMPSON V. MILBURN. Aug. T. 1823. 13 Martin's Loui siana Rep. 468. in a slave months, in action Per Cur. Porter, J. The petitioners sue to obtain the price Redhibitoof a slave. The defendants resist the demand, on an alle- ry defects gation that the negro was unsound, and afflicted with redhibitory may be pleaded afdiseases, incurable in their nature, at the time they purchased ter twelve him; of which diseases he died. The sale took place in the month defence of of August, 1819, and this action was commenced the first of No- an brought for vember, 1820. The plaintiff contends, that the defendants cannot the price. avail themselves of the defence set up, as twelve months have elapsed from the time of the purchase. The article of our code, which directs that the action of redhibition must be brought in one year at farthest from the date of the sale, can only receive an application in cases where the vendee is plaintiff, and brings an action. It leaves untouched the right to offer the want of consideration as a defence against paying the price agreed on. The rule is, "Loque tiene tiempo limitado para demandarse in juicio, es perpetuo para exceptionarse." Febrero. p. 2. lib. 3. cap. 1. sec. 6. no. 250. 3. In an action CHRETIEN V. THEARD. Feb. T. 1822. 11 Martin's Louisiana Porter, J. Rep. 11 Per Cur. Porter, J. This action was commenced to obtain to obtain re recision of the sale of a negro slave, called La Fortune, sold as a CIRON of the sale of carpenter and joiner, for the price of $1500. It is alleged that a slave, he is neither; and in addition, is afflicted with commen eed within six months time of dis the defects, redhibitory defects of disposition, a drunkard, run-away, and thief. Prescription and from the a general denial are plead by the defendant. The district court covering gave judgment against the plaintiff, and he has appealed. The the plaintiff first question to be examined, is that which the exception, as to the prove time of commencing the action, presents. The slave was sold on time he ob the 3d April, 1819. This suit was commenced on the 14th Febknowledge ruary, 1820. The plaintiff replied to the plea of prescription of the red plead by the defendant; that he brought his action within six at what tained a hibitory vices. months from the discovery of the vices and defects complained of in the petition. It has been strongly contested by the parties in this cause, on whom the burthen of proof lies, the plaintiff insisting that he cannot be required to prove a negative, viz. that he did not know of the existence of the defect anterior to a particular time; while the defendant urges, that this plea of the appellant is an exception to the general rule, which requires the action to be brought within six months from the date of the sale, and that he who relies on an exception must establish it. Partida, 3 tit. 14. L. 2. I have given to this subject a great deal of consideration, and my opinion is with the defendant. By our Civil Code, 358. art. 75. it is sufficient for the seller of a slave afflicted with redhibitory defects, to oppose the action, that it has not been commenced within six months from the sale. And on showing this fact, the plaintiff will be barred, unless he does away the objection, by replying that he did not discover the vices or defects six months before instituting suit. As he makes the averment, I think it his duty to prove it. Certainly, I do not wish to say that the buyer must give evidence that he did not know of the defect before a certain time, because that would be requiring him to prove a negative, which is impossible. But I think he should establish, when the facts came to his knowledge, on which he relies to show his right of setting aside the sale. And this he can do without difficulty; for the witnesses who prove the vices on the trial, can easily state when they communicated them to the plaintiff. If he has received the knowledge of what the witnesses knew, and would swear through other sources, he could bring forward those who gave him this information. The moment he does this, he brings himself within the exception; and if the vendor still insists the purchaser knew of the vice at an earlier period, the burthen of proof is then thrown on him; for the buyer can do nothing more than show affirmatively, that at a certain epoch he became acquainted with the fact; he cannot prove a negative, that he did not know it sooner. The passage cited by the plaintiff from the Curia Phillipica, Redhibitoria, n. 26. is certainly very strong; but I cannot, alone on that authority, bring my mind to assent to the proposition, that it is the duty of the defendant to support by proof, what it behoves the plaintiff to allege. If, in this case, the plaintiff had proved any circumstance, within six months, respecting the theft, I should have held it sufficient to have thrown the burthen of proof on the defendant, as to his knowing it sooner. But on this point the testimony is entirely defective. The slave was bought in April. There is evidence when the master returned to the Atakapas, but none as to the time the slave was sent there; of course, we have no means of ascertaining when he committed the theft, proved by one of the witnesses. All we know is, that it was after he reached his master's plantation. In regard to the defect of the qualities of carpenter and joiner, the plaintiff has proved enough to show that this action was commenced within the time required by law. But on the merits, the evidence is so contradictory, that I do not feel myself authorised to come to a different conclusion in regard to it from the district judge. The judgment of the district court should be reversed, and, in my opinion, the justice of the case requires that there should be judgment for the defendant, as in case of a nonsuit, and that the plaintiff pay costs in both courts. Martin, J. I cannot yield to the opinion of the author of the Curia Phillippica. The authorities which he cites do not support his conclusion. The defendant pleaded prescription, and the question is, who is to administer the proof of the period at which the knowledge of the redhibitory defects reached the vendee? I think we ought to require from the party who can give it. If he allege that he had it not at the time of sale, as it is clear that he had it at the time of the inception of the suit, it cannot be difficult for him, at least, to state at what intermediate period, and by what means the knowledge came to him. If he establishes any particular period-Stabit |