2 La. Ann. 748 | La. | 1847
The judgment of ¡the,court was pronounced by
This action is instituted to recover theprice¡paid by the plaintiff ¡for a -slave., who is charged to have died of a redhibitory disease with which he was affected prior to, .and a.t the date .of, the sale. A further .sum is also .claimed for expenses incurred for the ¡preservation of th® slave, for,an autopsy, .and for th® Interment. There was a judgment .against .the defendant Kendall, ,fro,m which he has appealed.
The evidence shows that the slave in question remained in .the possession of ,th® plaintiff,fo.r seventy-one days after the sale, .apparently in perfect health, .and.performing his usual labor wjtho.ut .interruption. At .the expiration of that .time he .reported himse.lf sick. The symptoms which manifested themselves were so slight, .that the ¡plaintiff’s husband, .after conferring with ,o.ne of his .neighbors who was at the time present, considered.it doubtful whether the slave was really sick, and concluded .that it was unnecessary to call in medical aid. T.he slave was ¡placed jn the plantation hospital under the.care of a ,nurse, and W.ithin less (than forty-eight houi;s after .he announced his illness, died, no alarming symptoms.havingmanifested,.themselves until within.a few moments previous .to his dissolution. A post mortem, .examination was made by two .physicians, who .discoveredfhe .existence .of a,chronic.affection .of the liver, to which they .ascr.ibethe.sudden death, and which, in their opinion, must have .existed for some time previous to tRe sale. Other physicians, w.ho were not .present pt the.autopsy, were.also examined as witnesses, and, as usually occurs.o.n such
The whole tenor of .the testimony shows that the defendant must 'have been ignorant, at the time of ¡the sale, of the disease under which the slave labored, and so thought the judge ,of the court below. He is consequently only bound to restore the price, and ¡to reimburse the .expenses occasioned by the sale and incurred for the preservation of the thing. He has, however, been decreed to pay §60, the Amount disbursed for the examination after death, and for expenses of interment. These are not among the charges for which the defendant is liable. C. C. art. 2509. Fuentes v. Caballero, 1 An. Rep. 27. In this respect the judgment must.be corrected.
The defendant contends that he should -be allowed compensation for the services of the slave while .in the plaintiff’s possession. The sale was for cash. The use of the money paid .as the price.stands as an offset against the services of the slave.
It is therefore ordered that the judgment of the District -Court be reyersed. It is further decreed that the plaintiff re.coy.er of the defendant Kendall, §537 50, with five per cent interest from the fst October, 1846, the date of judicial demand, un® paid; the appellee paying fh,e costs of this appeal, and the defendant those .of the .court below.
Eusris. C. J. absent Rost, J. recused himself on account of relationship ,lo one of the parties.