Hook v. Stovall, Dunn & Co., 21 Ga. 69

Hook v. Stovall, Dunn & Co.

21 Ga. 69 | Ga. | 1857

By the Court.

Mc Donald, J.

delivering the opinion.

Whether a new trial ought to be granted in the case depends entirely on the evidence. The action was on a promissory note given by defendant to plaintiffs. The defence was the breach of a warranty of soundness of a negro, whose price constituted the consideration of the note. The promissory note and bill of sale bear the same date, 6th March, 1853, and one witness testifies that the consideration of the note was the negro conveyed by the bill of sale. The bill of sale states that the right eye is smaller than the left, and warrants the negro girl to be sound in every respect, in mind and body. The record shows no plea, but the case proceeded before us, as well as in the Court below, as though there was a plea putting in issue the soundness of the negro at the time of warranty. The main question is, ought the Jury to Rave found from the evidence in the record that the negro was unsound at the time of the warranty? There was either a disease or a deformity of the eyes of the girl, at the time of the sale. It is stated in the bill of sale' that the right eye is smaller than the left. If it had been a deformity merely, however it might have affected her appearance, and, simply on that acount, her value also, the defendant could have had no rebatement of the price agreed to be paid. But it is not so, if the eye was diseased. There was a warranty of soundness, and that warranty bound the seller, whether he knew it or not, if it existed at the time. That it was of no apparent injury at the time, or for some considerable time after-wards, does not relieve the party from the effect of his contract He is liable without fraud, if there was disease at the time, however harmless it may have been for a time, and however tardy its development, and slow in its injury to the! *73purchaser. The evidence shows, that in the opinion of experts, the disease of the eye is an indolent tumor and that such tumors occasionally lie in the system, for a considerable time, in an inert condition, but .are liable to be awakened and take on increased action by reason of any perturbation, such as child bearing, nursing &c. &c. The left eye was considerably protruded. Dr. Dixon, who examined the eye, gave it as his opinion that the diseased tumor was in the eye as far back as the 6th of March, 1852. Dr. Campbell, who testified, gave no opinion as to the length of time the tumor had existed. He examined the tumor since the girl’s confinement and thinks it had increased.

Mrs. Robinson testifies that she hired the negro girl Mary for four or five months in 1845. One eye was much larger than the other. She had a child while she was in her possession, which caused her eye to enlarge and to continue to enlarge while she knew her. This is the amount of the evidence of the existence of the disease at the time of the warranty. The right eye was smaller than the left. The left eye., after bearing her child, was considerably protruded and continued to grow.

The plaintiffs offered in evidence the declarations of the defendant of the high value he placed on the girl, and for a considerable time after he bought her, but the testimony does not bring it down to the time of the development of the disease. As long as ho regarded the appearance of the eye as nothing more than a deformity, his sayings are entitled to no consideration in reference to that part of the issue. The evidence was all on the side of the defendant as to the existence of the disease at the time of the warranty. We think that the verdict of the jury was contrary to the evidence, inasmuch as, finding the full amount of the note, they must have found that the eye was not diseased at the time of the warranty. In the case of Joliff against Bendell a recovery was had on a warranty of soundness of sheep, which were at the time of sale, in appearance, perfectly sound and thriv*74ing, and continued so for two months. Many of the sheep after that time became diseased and died. The finding was, on the opinion of persons conversant with sheep, that they had an hereditary disease. Ryan and Moody’s Repts. 136; 21 Eng. C. Rep. 397.

Let the judgment be reversed.