McCeney v. Duvall

| Md. | Mar 4, 1864

Goldsborough, J.,

delivered the opinion, of this Court:

This was an action instituted in the Circuit Court for Anne Arundel County, by the appellee against the appellant, to recover damages on a receipt under seal containing a warranty of soundness of certain negro slaves, amongst" whom, was the negro Hester, the- subject of this controversy.

During, the progress of the trial in the Court below j the appellant took three exceptions. One of them, to the admission of evidence objected to by him, the second to the rejection of evidence offered by him, and the third, to the rejection of the appellant’s eight prayers.

The first exception contains the evidence of John Lamb, a witness produced on the part of the appellee, who, having been examined, and having given other evidence not objected to, proceeded to state declarations of negro Hester made by her to the appellant or in his presence, and in reply .to the questions of the appellant, as to the length of time she had been suffering with the.disease and her reasons for not mentioning it to him. . It was to these declarations of Hester, ás will more fully appear hereafter, that the appellant objected. The appellant, as tending to prove the soundness of Hester, asked Dr. Claytor whether he, the appellant, was not in the habit of sending for a physician whenever his negroes were at all sick, having proved by the witness that the appellant never attended himself to his negroes, and had no other- physician but witness for many years. The Court refused to permit this evidence to go to the jury, to this refusal the appellant excepted. We are guided by the decisions of other States in disposing of the question in the first exception, as it is without precedent in this. It is insisted by the appellee that the declarations of negro Hester, under the circumstances, were admissible, either from the necessity of the case, or were a part of the res gesta, or because of the appellant’s acquiescence. While it may be conceded that the authorities cited by the appellee, do sustain the doctrine that the declarations of a slave to a physician or other persons, as to the symptons of the disease under which she is then laboring, are admissible, yet in view of the policy of this State as indicated by her legislation, and as the admission of such evidence is an exception, we feel ourselves justified in restraining the exception to the strictest limits. The statements made by Hester, from the character of the question put by the appellant, refer not to her 'present diseased condition which would assimilate this to the cases cited by the appellee, but to an antecedent period; to answer such a question, would require the exorcise of memory, and not being evidence from necessity, nor under oath, their repetition by the witness is therefore but hearsay. We interpret the decisions to mean that the declarations of a slave, though admissible to prove the present nature of the disease and present condition of the party, they must be confined to the disease under which the slave is laboring at the time she makes her declarations, and cannot be so extended, as to make those declarations evidence to show that she had been diseased at a period anterior to that time, or to prove that the disease had existed for any considerable length of time. In a similar case cited in the Georgia R., part 1st, page 79, the Court said: “This would be making the sayings of the negro evidence, to prove a distinct fact which is susceptible of being proved by other testimony, and therefore the same necessity does not exist for it as in the other Case.” This distinction is fully sustained by the case of McClintock vs. Hunter, Dudley’s S. C. R., 328; see also the other cases cited by appellant on this point.

It may be contended that the negro’s declarations acquired the force of evidence, because they were extracted by the question of the appellant, we do not think so; if they would not be evidence (except in the restricted sense above referred to) when made to a physician they acquire no greater force under the circumstances of this case. They ar® therefore not original evidence from necessity, nor are they to be considered as a part of the res gesta.

But it is contended that they are evidence from the acquiescence of the appellant. As we interpret acquiescence, it implies a consciousness or anticipation of the answer to be given to the question asked as well as consent to the answer. In such case, the appellant’s silence might be considered as acquiescence. But the very nature of the question put by him, clearly shows that he was wholly ignorant of the slave’s condition, and was thus unprepared for the answer; in such case his silence cannot be regarded as an acquiescence. Eor the above reasons we think that the' first exception was well taken, and that the evidence objected to should have been excluded.

The evidence proposed to be offered by the appellant of his habit and custom in sending for a physician in case of the sickness of his negroes, had no tendency to sustain either of the issues, nor to rebut the presumption,' if any was raised by the appellee’s evidence, that Hester was unsound at the time of her sale.

We will now consider the appellant’s prayers, the rejection of which formed the third exception:

The first and-second prayers are predicated upon the assumption of a variance between the allegations in the pleadings and the proof to sustain them. We could entertain but little doubt that these prayers were right'if the appellee had been required, in suing on the warranty under seal, to pursue the rules of pleading which existed prior to the adoption of the Code. In this case the negroes alleged to be warranted, were of independent value, each slave susceptible of separate valuation; and if the warranty was broken, parol evidence might be admitted to prove the injury sustained by its breach. See 3 Howard’s Miss. Rep., 223. We think that the second and third sections of Article 75 of the Code, applicable to the pleadings in this case, and the covenant of warranty may be considered distributive^ as applicable to each slave. In this view the decíatlon is in conformity with the 20th form in the above Article.

The third prayer is predicated upon tbe hypothesis that tbe appellee could not recover in this action unless be returned or offered to return oil the negroes named in the covenant within a reasonable time after he discovered the alleged unsoundness of Hester. The views we have expressed on the first and second prayers, are applicable to this; besides, it is expressly decided in the case of Franklin & Armfield vs. Long, 7 G. & J., 419, that where the action is brought on the warranty, the buyer may keep the property and recover damages on the warranty, or rescind the contract by a return of it in a reasonable time. How far the law of this prayer might be correct if the appellee had brought his action for money had and received, it is unnecessary for ns to decide, as the question is not before us.

The fourth prayer is objectionable because, though there is some evidence that the slaves purchased by the appellee were in his possession before the date of the receipt, there is none as to the terms of the contract of sale. The agreement was therefore executory and was merged in the written contract, which being under seal imports a consideration. 7 G. & J., 420.

The fifth prayer being confined to Hester, embraces the same proposition as the third. Our views expressed as to that prayer, are applicable to this, so far as it relates to the return of Hester.

As to the sixth prayer, we see no substantial difference between the law of this prayer and that of the third. If the appellee was under no obligation to return Hester in order to maintain this action, then there was no necessity to give notice within a reasonable time of her unsoundness. It was incumbent on the appellee only to establish her unsoundness at the time of sale.

The seventh prayer should have been granted. It embraces tbe proposition that to constitute a breach of warranty of soundness, the disease must have existed in a for-rued state at the time of sale, and have been of a permanent nature, calculated materially to affect the value of the slave. The appellant was entitled to produce and submit evidence to the jury to rebut any presumption that Hester was in this condition. See 20 Texas R., 398. 7 B. Monroe’s Ken. R., 450.

(Decided March. 4th, 1864.)

In this view the appellant was entitled to the evidence of Lamb, who would testify that early in November 1859, Hester was a fine healthy girl seventeen or twenty years old; to the evidence of Basford and Jones, and Dr. Claytor, as to the work Hester was doing just before her sale.; to the professional opinion of Dr. Ridout, Jr., predicated on the evidence proposed to be offered by the appellant; also to the admission of the appellee in his letter of the 13th of March 1860, to the appellant. We are therefore -of opinion that the Circuit Court erred in its ruling.on the first exception and in rejecting the appellant’s seventh prayer, but ruled correctly in rejecting the evidence in the second exception, and in refusing the appellant’s first, second, third, fourth, fifth, sixth and eighth prayers.

Judgment reversed, and procedendo awarded.