3 Mart. (N.S.) 100 | La. | 1824
delivered the opinion of the court. This is a redhibitory action. The plaintiff states that he gave in exchange for the slave, which forms the subject of the present suit, and two others, a house and lot, situated in the town of Natchitoches; that one of these negros called Eliza, was, at the time of the contract, afflicted with redhibitory defects, and subject
The action was commenced by attachment, and by citation on the agent or attorney in fact, of Rodes, who was stated to be absent from the state. The attorney appointed to defend him pleaded, that the case was not one which could be commenced by attachment: that the facts alleged in the petition were not true: and that the action was barred by prescription.
The service of the petition on the agent of the defendant, whose authority was not disputed in the court below, renders it unnecessary for us to examine whether this was a case which could be legally instituted by way of attachment.
The evidence spread on the record, fully authorises the verdict which the jury rendered in favor of the plaintiff, and we are of opinion the district judge did not err in refusing a new trial. Motions of this kind are ever addressed to the sound legal discretion of the court, and they should never be granted, unless the application discloses matter sufficient to render it probable that justice has not been done, and
But the disposal of the questions raised in argument, brings us to what we consider the greatest difficulty which the case presents. We have already seen that this action is instituted on a contract of exchange, by which a house and lot were given for three slaves. The judgment of the district court is, that the plaintiff recover of the defendant, the sum of six six hundred and fifty dollars in money. This is not rescinding a contract of exchange, but a contract of sale; or in other words, a different contract from that which the parties entered into. Redhibition, according to our code, is the cancelling of the sale on account of some defect in the thing sold, such as may be sufficient to oblige the seller to take it back again, and have the sale annulled. C. Code, 356, art. 65. Were there no other provision in our law but this, it would necessarily follow, that in annulling the contract, the parties should be replaced in their original position; the plaintiff
"Redhibitoria es bolver la cosa comprada, el comprador at vendedor, y el bolverse el precio que diopor ella. Curia Philip. lib. cap. 13, nos. Verbo Redhibitoria." The price given here was not money, but a house and lot; or, strictly speaking, there was no price, for the contract was not one of sale.
Pothier treats of this subject with his usual accuracy, and gives the most satisfactory information on the point now under discussion: "L'acheteur (he says,) est en droit de demander par l'action redhibitoire la résolution et nullité du marché et qu'en consequence les choses soient remises en meme etat que s'il n'etoit pas intervenu." Pothier, traite du contrat, de vente, no. 217. In support of this doctrine, he cites the Digest, liv. 22, tit. 1, l. 23 & 60.
There is some difficulty in applying these principles to the case, as only one of the slaves is afflicted with redhibitory defects, and the property given in exchange was a house and lot, which most probably is not susceptible of such division as would enable a portion
The pleadings and evidence do not enable us to give final judgment according to the view we entertain of the legal rights of the parties. We think the cause should be remanded for a new trial.
It is therefore ordered, adjudged and decreed, that the judgement of the district court be annulled, avoided and reversed, that the cause be remanded for a new trial, and that the appellee pay the costs of appeal.