25 Ga. 346 | Ga. | 1858
By the Court
delivering the opinion.
This case comes up from the Superior Court of the county of Franklin, on a demurrer to the defendant’s plea. It appears, that on the fourteenth day of October, eighteen hundred and fifty-one, the defendant sold to the plaintiff three negroes, for which the plaintiff paid him twelve hundred dollars. The defendant executed to the plaintiff a bill of sale, under seal, for the negroes, and warranted them to be sound and well in body and mind.
One of the negroes having been unsound at the time of the sale and warranty, the plaintiff sued the defendant in an action of covenant, alleging, as a breach of the covenant, that the said negro was, at the time of said warranty, unsound in body, and wholly unfit for labor, or service, and became and was of no value or use whatever to the plaintiff; and that the defendant had wholly neglected and refused to make, compensation to the plaintiff for the said injury. On the trial of that cause, at April Term, 1855, of Franklin Superi- or Court, the jury rendered a verdict in favor of the plaintiff, for the sum of four hundred and fifty dollars, on which judgment was entered up.
The plaintiff sued the defendant in a second action, returnable to the October Term, 1855, of the same Court, for a false warranty in the same sale of the negroes, but suing additionally for the recovery of the physician’s bill, expenses of nursing, &c., of the negro when sick, as damages not
1st. That the Court erred in deciding thatthe second action was for the same breach of warranty as that on which the former judgment was founded.
• 2d. That the Court erred in sustaining the defendant’s plea of former recovery in bar of the second action.
■ 3d. That the Court erred in ordering the case to be dismissed.
The second suit was brought originally for the recovery of a sum of money which the plaintiff had to pay to William W. Mitchell, to whom he had resold one ofjhe said negroes, with a warranty of soundness. At a subsequent Term of the Court, the declaration was amended, alleging fraud in the sale of the negro, by the false and fraudulent representations of.the defendant to the plaintiff, of the soundness of the negro, when he knew that she was unsound. The plaintiff avers, in his said amended declaration, that “ at the time of the purchase of the said slave from the defendant, ánd long
It was said in argument, that this Court had decided in Badgett vs. Broughton, 1 Kelly 592, that the measure of damages in an action of covenant for a breach of warranty of the soundness of a slave, is the difference between the price paid, and the value of the slave in her unsound ‘condition ; and that, therefore, the expenses sued for now could not have
The expenses of medical attendance, nursing, &c., were not sued for, and not asked on the trial, and this Court, in delivering its opinion, was particular to say, that if the jury had found a special verdict, setting forth the facts as stated in the record, “ the measure of damages would have been, in judgment of the law, at least to the extent stated by the Court to the jury,” which is that stated above. It was not decided that if sued for, other damages could not have been recovered. The contrary is implied.
It is unnecessary to decide, that in cases of false warranty, damages of some description may not be recovered, to which the plaintiff would not be entitled when the warranty was made in good faith, and without mixture of fraud. But we do hold, that where damages resulting from the breach of the warranty, are of a sort that may be recovered in either form, of action, the recovery in one will bar the plaintiff’s right to* sue in a second action. The evidence of the damage in that respect, must necessarily be the same in both actions, and it is the plaintiff’s own fault if he omitted averments in his declaration, which were necessary to admit proof of them. The defendant must not be harrassed with a multitude of suits growing out of the same cause of actions.
The order or judgment of the Court dismissing the action, was simply an act of supererogation. The cause was already out of Court by the judgment of nonsuit, and plaintiff’s* motion was to set aside the nonsuit, and reinstate the case.
Judgment affirmed.