Long v. Hickingbottom

| Miss. | Apr 15, 1855

Mr. Justice Fisher

delivered the opinion of the court.

This is a writ of error to a judgment of the circuit court of Franklin county.

The error assigned is, that the court below erred in overruling the defendant’s motion for a new trial, which was sought to be supported on the ground that the damages were excessive, and the verdict in other respects contrary to law and evidence.

The action was brought to recover damages for an alleged breach of warranty as to the title of the defendant to a slave, which he had sold to the plaintiff.

The material evidence introduced on the trial to support the action, may be stated in few words. One witness states that he was present when the plaintiff paid to the defendant the sum of $250, which was understood by both parties to be in full payment for a slave named Jane, which had been sold by the defendant to the plaintiff. That defendant on receiving the money, delivered a bill of sale, executed by his wife alone, and not acknowledged as required by the statute, to the plaintiff

This is, in substance, the testimony, so far as it relates to the sale ; and the question is, as nothing appears showing that an express warranty was entered into by the defendant, whether the law will, under the facts, imply a warranty as to the title of the defendant to the slave sold to the plaintiff.

The rule is thus stated by Chancellor Kent: — “In every sale of a chattel, if the possession be at the time in another, and there be no covenant of warranty of title, the rule of caveat empior applies, and the party buys at his peril. But if the seller has possession of the article sold, and he sells as his own, and not as agent for another, and for a fair price, he is understood to warrant the title.” “ A fair price implies a warranty of title, and the purchaser may have a satisfaction from the seller, if he sells the goods as his own, and the title proves deficient.” 2 Kent, Com. 608, 609. The. jury having found a verdict for the plaintiff below, the question is, when tested by the above rule, Can it be sustained? While there is no direct testimony that the seller at the time of the consummation of the sale, had the slave in his possession, or professed to sell her as his own property, or that she was even sold for a fair price, yet all these facts might have been legitimately inferred by the jury from the evidence introduced on the trial. One witness proves “ that he was at the plaintiff’s house, in the year 1848 or 1849, when he was asked by the plaintiff how many sovereigns it took to make $250, as he had purchased the slave Jane from defendant Long, for that amount,” and that the defendant was present when this conversation occurred. The witness further states that the money was then paid to Long. This amounts to direct evidence that Long sold the slave to the plaintiff for the sum named, and the jury could have inferred that it was a fair price, especially as it is but a legal presumption that all sales are fairly made until the contrary is shown. They might also have inferred that the defendant had possession of the slave, as the law would presume that payment and delivery of possession to the purchaser were simultaneous acts, and if the possession was not in the defendant, of course he could not comply with this part of his contract in delivering possession to the plaintiff. That possession was thus delivered, is proved by the fact of the defendant and wife afterwards instituting a suit to recover the slave from the plaintiff.

It is, however, said, that the case is taken out of the operation of the rule, with respect to an implied warranty of title, by the fact of the seller delivering the bill of sale of his wife to the purchaser, and thus disclosing his agency, or rather the name of his principal. If a feme covert can act by an agent at all in selling or transferring her title to her slaves, there is still but one mode by which such agency can be created; and that is by deed, signed and sealed by herself and husband, and acknowledged in the same manner that her conveyance must be acknowledged, in order to transfer her title to the purchaser. An agency not created in the mode required by law, would be simply a nullity, and would not, therefore, in a legal sense, be an agency, and the party thus assuming to act could be held responsible by the alleged principal as having done an act prejudicial to her rights, without legal authority. Admitting, then, that the seller professed to act as the agent of the wife in making the sale, it would nevertheless be treated as a false assertion on his part, unless he were legally constituted such agent, and could bind his principal in making a sale of said slave. That he was not so authorized, even if it were in the power of the wife to have appointed an agent to sell her slaves, is manifest from the fact of his joining with her in prosecuting a suit to recover the slave sold to the plaintiff, and actually succeeding therein on the ground that the husband’s act was void.

It is, therefore, wholly immaterial which position shall prevail. If he professed to sell his own property, then the law implies a warranty of title, and he is responsible in damages for a breach of this warranty. If, on the contrary, he professed to act as his wife’s agent in making the sale, he merely assumed a false character, and thereby obtained the purchaser’s money, without a shadow of consideration; and the money may, therefore, be recovered back under the count for money had and received.

Upon the whole case, it may be remarked, that if strict justice has not been administered in the court below, the plaintiff in the action, and not the defendant, has been the sufferer. The verdict, as modified by the court, is as reasonable as the defendant ought to have desired, and more so than justice demanded.

Judgment affirmed.