Banks v. Botts, 10 La. 42

Banks v. Botts

10 La. 42 | La. | 1836

Bullard, J.

delivered the opinion of the court.

'This is an action in which the plaintiff sues the vendor to recover back the price of a slave, who, he alleges, died shortly after the sale of the small pox, which disease he had contracted previously to the purchase.

In a redhibito-the"5 ^evidence (he juryth^t'fte disease of which the slave died, made its appear-days'"iftei^'the sale> ,the cannot avail himself of the legal sueleases?" When the pre-redinhitory°dis-,ease ceases> the buyer may still prove the fact ((¿¡¡ted6 at^the j;™®e ¡^¡Tafter the sale. where the “^left'doubtfui tythe evidence, hone of t'acqthe °(ot disturbed,

The defendant denied, in bis answer, the existence of the disease at the time of the sale, and alleged that the slave was then sound and in good health.

This issue was submitted to a jury, whose verdict was in favor of the defendant, and the plaintiff appealed, after an ineffectual motion for a new trial.

The evidence did not satisfy the jury that the disease of Avhich the slave died, made its appearance within three days after the sale, and consequently the plain tiff cannot avail hini-self of the legal presumption established in such cases. But 1 \ , . we accede to the proposition advanced by his counsel, that this does not preclude him from furnishing evidence that in point of fact the disease did exist at that time. On this L t point much evidence was given on both sides. On the part of the vendor it is shown, that the sale took place on the 23d of June, and that the slave remained at the house of Mr. Jacobs until the 25th, when he was put on board a steam-boat, to be sent to Lafourche; that during the time ’ ’ ° he remained at Jacobs’s, he exhibited none of the symptoms of small pox, and that no cases of that disease had occurred at his establishment for two months. On what day the disease made its appearance, is not very clearly established, It was during the voyage to Lafourche, and he died on the 10th July. According to the opinion of medical men, the slave may have caught the infection after the 25th of June, or it may have existed in the system at that time. The matter is left doubtful by the testimony in. the case. The question is one of fact, and on a careful examination of the evidence submitted to the jury, we are unable to discover that it preponderates so decidedly in favor of the plaintiff, as to authorize us to disturb the verdict.

It is, therefore, ordered, adjudged and decreed, that the • judgment of the District Court be affirmed, with costs.