8 Port. 133 | Ala. | 1838
— The' charge given in this case, and that refused, present the question — Whether the unsoundness or worthlessness of a personal chattel at the tíme of its
1 It is understood that the seller of personal chattels impliedly stipulates that the article sold is his own, and that he will indemnify the buyer for the loss, if the title is in another person—(3 Bla. Com. 166; Stuart vs. Wilkins, Doug. R. 18; Furnis vs. Leicester, Cro. Jac. 474; Crosse vs. Gardner, Carth. Rep. 90; Macbee's adm'r vs. Gard ner, 2 Har. & Gill’s R. 176; Chism vs. Woods, Hard. R. 531; Osgood vs. Lewis, 2 Har. & Gill’s R. 495; Defreeze vs. Trumper, 1 Johns. R. 274.) But a sale by an executor, administrator, or other trustee, forms an exception to the rule, and does not imply a warranty of title, unless there be fraud, or perhaps in some instances, gross negligence —(Forsyth vs. Ellis, 4 J. J. Marshall's R. 298; M’Ghee vs. Ellis & Browning, 4 Litt. R. 244; Peter vs. Thornton, 6 Monroe’s R. 27; Head vs. McDonald, 7 Monroe’s R. 206; 2 Kent’s Com. 374.) But to entitle the purchaser to recover for any defect in the.quality or soundness of the article or property sold, except under special circumstances, he must prove that the seller warranted the thing sold to be good and sound, or that he concealed or fraudulently represented its qualities—(3 Bla. Com. 164, 165; 2 Kent’s Com. 374, and cases there cited; 1 Peters’ C. C. R. 317; Lowndes vs. Lane, 2 Coxe's R. 363; Sexas vs. Woods, 2 Caine’s R. 48; Snell vs. Morris, 1 Johns. R. 96; Perry vs. Aaron, ibid. 129; Defreeze vs. Trumper, Ibid, 274; Holden vs. Dakin, 4 Johns. R. 421; Davis vs. Meek er, 5 ibid. 354, 395; Cunningham vs. Spier, 13 ibid. 392; Fleming vs. Slocum, 18 ibid. 403; Wilson vs. Shackleford, 4 Rand. R. 5; Reed vs. Prentiss, Adams’ R. 174;
Where there was no warranty at the timé of the sale, but a mere representation, it is not enough to show that the thing sold was not such as it was represented to be; but the purchaser must go farther, and prove such a state of facts or circumstances, as fix upon the seller a knowledge that his representation was false when he made it. Where this is shown, the seller'is justly chargeable with a fraud—(Smith vs. Miller, 2 Bibb’s R. 616; 1 Fonblanque’s Eq. Note X. 120, 121, and cases cited above.) So, if a vendor conceal the defects of property, he is chargeable on the ground of having suppressed the truth, to the buyer’s prejudice —(Smith vs. Rowzee, 3 Marsh. Ky. Rep. 527; Parkinson vs. Lee, 2 East’s R. 314; Jones vs. Rowden, 4 Taunt. R. 847.)
The general principles we have laid down, apply with all their force to a contract for the sale and hire of a slave, so far as the nature of the subject will allow— (Wheeler on Slavery, 107, et post.) The hirer of a slav.e for a definite period, becomes his purchaser for the time agreed on, and if he dies before its expiration, the loss of service must be borne by the hirer, who, if sued on his undertaking to the owner, cannot resist a recovery
In Virginia and South Carolina, a different rule has been adopted. In’those States, it is held that the owner', is not entitled to recover hire, for the time intervening between the death of the slave and’the expiration of the, time for which he was hired, but in such a case, the hire must be apportioned—(George vs. Elliott, 2 Hen. & Mun. R. 6; Bacot vs. Parnell, 2 Bailey’s R. 424.)
In South Carolina, it has been repeatedly adjudged, that the payment of a sound price implies a warranty of the soundness, by the seller of a personal chattel— (Timrod vs. Shoolbread, 1 Bay's R. 324; Rouple vs. McCarty, 1 Bay’s R. 480; Lester vs. Ex'ors of Graham, 1 Const. R. 183; State vs. Gaillard, 2 Bay’s R. 19; Barnard vs. Yates, 1 Nott & McC. 142; Missroon vs. Waldo, 2 ib. 76; Crawford vs. Wilson, 2 Const. R. 353.) Whatever commendation these decisions may claim from the moralist, they certainly derive no support from the English common law.
In the case at bar, .the instructions to the jury maintain the principle, that it is enough for the purchaser of personal property to show that it was of no value, though the seller may have made no warranty, nor have prac-tised a fraud upon him. In thus supposing the law to be, the Circuit court erred: — its judgment is therefore reversed, and the cause remanded.