Athey v. Olive, 34 Ala. 711

Athey v. Olive

34 Ala. 711 | Ala. | 1859

K. W. WALKER, J.

Where a slave is neither insane, nor an idiot, nor the,subject of any mental derangement which interferes with the natural operations of the mind, the mere fact that she lacks ordinary sense does not esí ab-li.sli a. breach of the warranty that she is of sound mind. Such a warranty is not a stipulation against mental weakness, or a guaranty that the slave is possessed of ordinary capacity. We will not say that the breach of such a warranty would not he made out by proving that the slave, though neither an idiot, nor insane, was of so low a grade of mental capacity as to disqualify her for the performance of the ordinary duties of slaves. We do not understand the charge given by the court below to ¡n.-ert that- proposition. It was simply an instruction to the *715jury, ‘that a breach of the warranty did not result from the mere fact that the slave lacked ordinary sense — in other words, that she was possessed of less mental capacity than is commonly found among slaves. Thus considered, it was free from error. A slave may possess less than the average capacity of that class of persons, and yet not be disqualified from discharging the ordinary duties imposed upon them. — Belew v. Clark, 4 Humph. 506; Farnsworth v. Earnest, 7 Humph. 24; Sloan v. Williford, 3 Ired. 307; Simpson v. McKay, 12 Ired. 141.

The court erred, however, in charging the jury that, if the woman was known to be with child at the time of sale, and the child was born after the sale, and before any offer to rescind was made, then, an offer to rescind, made after the death of the child, was too late. The charge seems to assume, that the birth of the child audits subsequent death would deprive the purchaser of his right to rescind, although the facts which would justify the rescission might not be discovered until afterwards. The error of such a view is manifest upon the mere statement of it. All that the law requires of a purchaser, who insists upon a rescission, is that he shall act piromptly upon the discovery of the fraud, and return, or offer to return the property, within a reasonable time. — Dill v. Camp, 22 Ala. 249. If the defendant did not discover the alleged fraud •until after the death of the child ; or if, though he discovered it before that event, the period intervening between such discovery and death was so short, as not to afford him a reasonable opportunity of returning the property before the death of the child, it is plain that it ought not to be held that he was thereby deprived of his right to claim a rescission.

Judgment reversed, and cause remanded.