30 Ga. 418 | Ga. | 1860
delivering the opinion.
The Judge refused to charge as requested, that before the jury could find the full amount of the note, they must first find that the negro was not diseased at the time of the warranty. Upon a former trial of this same case (see 26 Ga. Rep., 709,) this identical charge was refused by the presiding Judge, and adjudged by this Court to have been a proper charge. The refusal to give it was distinctly adjudged to have been error; why it should have been refused again, I cannot understand. All that we can do in the present position of the case is, to adjudge again as we do adjudge, that the refusal was error. The proposition is sound law, and it is applicable to the case. There are also two other points which need elucidation for use in the new trial.
2. The measure of damages laid down by the Judge in this case, while it is a literal extract from the opinion of Judge McDonald on the former trial of this same case, is but a part, which, separate from its context, leads to a conclusion directly opposed to the fair conclusion which is to be drawn from the whole opinion. This isolated part is inaccurate, and the inaccuracy is easily detected by its departure from the general reasoning of the opinion. That general reasoning is strong and clear, and rests upon the foundation that the agreed price of the negro is the guiding-star in estimating the damage caused by her unsoundness. In the extract, Judge McDonald does say that the damage is the difference between the value of the negro, if sound, and her value unsound, “ without reference to the price to be paid for her but I cannot resist the conviction, “without” was written for with, by a slip of the pen, or from a momentary vibration of the idea. Read, “with reference, for “without reference,” and the whole opinion becomes consistent with itself and with the previous rulings of this Court upon the same subject. This accident seems to have created some difficulty with members of the bar, as well as with the Judge who presided on the trial below. I will endeavor to place the rule where there can be no misapprehension concerning it for the future. The damage to be recovered or deducted (for there is no difference whether the damaged party sues or is sued) is the difference between the value of the property, if sound as it was
There is no difficulty in the practical application of this rule; for though no witness perhaps would fix the same price which the parties may have fixed, yet each witness may fix his own price upon the sound article and upon the unsound, and the difference will show the per eentum of loss on the sound value fixed by him. The same per centum taken off of the purchase-money will give the true damage. An intelligent witness could shorten the process by stating at once the ratio or per centum of damage caused by the unsoundness, as that the disease had lessened the value one-half, one-fifth, or one-hundredth. In other words, it is a proportioned part of value to be taken off, and not an absolate quantity. Any other x'ule is inconsistent with the doctrine uniformly held by this Court, that whei’e the unsoundness renders the property totally worthless, the measure of damages is the purchase-money. An instance will illustrate the inconsistency : Suppose a man pays $800 for a negro actually worth $1,000, (no improbable supposition,) taking a warranty of soundness; the negro turns out to have been diseased, and the witnesses state that the negro, sound, would be worth $1,000, but unsound, is worth only $100; on the rule as laid down by the Judge in this case, the recoveiy would be $900; that is, the plaintiff would get back $100 more than his purchase-money, and have a negro worth $100 besides. But if the negro were totally worthless, he would get back only his purchase-money; in other words, a partial failure of consideration would entitle him to a larger recovery than a total failui’e would. This is absurd. Tiie true rule would take off nine-tenths of the purchase-money, and never would exceed the purchase-money in any case, nor equal it, unless the xiegro should be totally worthless. Where the damage is to be deducted, as it is to be when the damaged party is sued, the deduction should be made at the time when the purchase-money was due; and when it is to be recovered by a plaintiff, he having paid the purchase-money, it assumes the form of an excessive payment, and I -think he ought to recover the amount of the excess with interest from the time it was paid. The case before us is one of deduction, involving no question of interest in form, though in substance it does; and what I
3. We think the proposed evidence of Stokes was properly rejected. He was asked as to the deterioration of value produced by an unsouudness of which he knew nothing except as it had been stated on the witness’ stand by Dr. Dickson. He could give no opinion except upon facts within his own knowledge, unless he was an expert. Mr. Stokes probably was an expert in valuing sound negroes, but he had no peculiar skill, I imagine, in estimating the effects of disease. There can be no difficulty, however, in getting at the desired fact; The doctor himself, whether he be a skillful judge of the value of negroes or not, is the best judge of the effects of the disease — how much it detracts from the physical energies and usefulness, as well as from the chances of life, and so in what proportion it lessens the usefulness or value of the negro. I will only add, that, in my opinion, this is not a case where previous concurrent verdicts ought to have weighed against a new trial. The unsoundness at the time of the sale was proven abundantly and beyond all doubt, (and so this Court has said when the case was on a former hearing,) and the law, therefore, demanded that there should be some abatement from the price. The jury, in refusing to allow it, after proper instructions, would but be setting the law aside. The repetitions of wrong can form no ground of acquiescence in it.
Judgment reversed.