17 La. 97 | La. | 1841
delivered the opinion of the court.
This action is brought to annul the sale of a flatboat fitted up to be used as a ball-room, on the ground that at or before the time of the sale it had defects known to the defendant, which he fraudulently concealed from the plaintiff. The petition charges that before purchasing, the plaintiff informed defendant that he would not buy the flatboat if it leaked; and that defend- [99] ant represented the boat to be sound and in good order; and showing him that the pump would not draw, assured the plaintiff that the boat had not been pumped for six days; that on or about the first of July, 1839, the boat was delivered to the plaintiff at his domicil in Assumption, and there was then no water in it; but that the very next morning it had leaked so much that the water in the hold exceeded ten inches in depth ; that at the time of the purchase the boat was so leaky that it was of little value, and its use as a ball-room was thereby rendered extremely inconvenient and imperfect; that said defect was fraudulently concealed, and the boat falsely represented to be in good order by defendant, with a view to deceive the plaintiff in the purchase; that soon after he discovered such defect and fraud, he (plaintiff) offered to return the boat and cancel the sale, but that defendant refused to receive the boat or return the price. The answer denies all fraud or deceit, and avers that the plaintiff had as perfect a knowledge of the boat 'as defendant himself; having on the day of the sale made a more thorough examination of her than he (defendant) ever did, and expressed his satisfaction as to her soundness; that moreover the defendant never warranted the boat in any manner, but sold it with the express understanding that the buyer was to receive it on his own examination and without any warranty. The case was laid before a jury, who brought in a verdict for the defendant; after a fruitless attempt to obtain a new trial, the plaintiff appealed.
Had all the witnesses examined in this case appeared before the jury, and been residents of the parish where the trial took place, we would not perhaps have disturbed this verdict; we would have considered that those parts of the testimony which had created in our minds a strong conviction of its incorrectness, were disbelieved by the jury from a personal knowledge of the witnesses; but in this case all the evidence adduced by the plaintiff was taken under a commission directed to, and executed in the parish of [100] Ascension. The most important and material part of it seems to have
It is therefore ordered, that the judgment of the district court he [102] reversed; and proceeding to give such judgment as, in our opinion, ought to have been rendered below; it is ordered and adjudged that the said sale be cancelled and annulled, and defendant to deliver up to plaintiff, the two notes described in the petition as given for the price of said flatboat, or in default thereof, do pay their amount, to wit, $700, with costs in both courts.