Hubby v. Stokes

| Tex. | Jul 1, 1858

Wheeler, Ch. J.

It is unnecessary to remark upon the statements of the defendant’s witnesses, who testified as to the health of the negro, when they owned her. It will suffice to say, that, in so far as it tended to show that the negro was sound, or in good health, at the time of the sale by the defendant to the plaintiff, it was contradicted by the testimony of so •many witnesses, male and female, who speak positively to facts about which they could not be mistaken, as seem to render it quite impossible to credit the apparently counter-statements of these two witnesses. It is evident the jury did not credit their statements, else they could not have rendered the verdict they did. There is such a mass of concurrent testimony to the point, as to place it beyond nmy reasonable doubt or dispute, that the negro was imbecile in mind, diseased, and utterly worthless; and that it was well known to the defendant; and that he intended and practiced a flagrant and manifest fraud, on the plaintiff, in the sale of the negro. No other conclusion can reasonably be drawn from the whole evidence; and it is not too much to say, that no jury of ordinary sense and understanding, could have come to any other conclusion. The evidence speaks too plainly the true character of the transaction, to require comment. There was really no occasion for the plaintiff to rely upon the supposed warranty in the hill of sale. His case was well made out, on the alleged ground of deceit, misrepresentation, and fraud in fact. It cannot he doubted, that the misrepresentations, proved to have been made by the defendant to the plaintiff’s wife, when acting for the plaintiff, as his agent, were equally a fraud upon the plaintiff, as if they had been made to him personally. The judgment might be maintained, on the distinct ground of manifest fraud in fact, independently of the supposed warranty.

But if, as the plaintiff’s counsel and the court seem to have supposed, the plaintiff’s right to a recovery depended upon a qualified warranty, there was error in so much of the charge of the court, as assumed that the plaintiff might recover the purchase money, with interest, if the negro was in fact worthless, though the defendant did not know of the unsoundness. The court might very well have declined any instruction to the jury, based upon the supposition that they would find the defendant did not know of the unsoundness. It was scarcely to be supposed they would so find, in view of the convincing proof to the contrary. But, under the peculiar terms of the qualification of the warranty, if, indeed, it he such, there would not be a breach of warranty, and consequently there could be no recovery upon it, if the defendant did not, in fact, know of the unsoundness of the negro. Read in the light shed upon it, by the evidence in the case, there would seem little cause to doubt, that the particular form of the warranty, was but a contrivance, the more -effectually to consummate the design of the defendant, to practice a cheat upon the plaintiff, without incurring any ultimate responsibility. But, treating it as it was treated below, there was error in the charge in the particular indicated; and if it were not manifest, that the error did not influence the finding of the jury, it would require a reversal of the judgment. It, however, is manifest, that it was wholly disregarded by the jury. They found exemplary damages, which they could not have done, had they not disregarded this instruction. As, therefore, it is thus manifest that this error did not have any influence upon the finding of the jury, it can afford no ground for reversing the judgment. The verdict was evidently a response to the preceding part of the charge, of which the defendant can have no cause to complain. It ivas quite as favorable to him as he could have asked, under the pleadings and evidence in the case.

The plaintiff’s counsel very unnecessarily remitted a considerable portion of the verdict, found under the instruction respecting exemplary damages; but this cannot affect their right to have the judgment affirmed as to the residue. There is no error to require a reversal of the judgment, and it is therefore affirmed.

Judgment affirmed.