Scranton v. Tilley

16 Tex. 183 | Tex. | 1856

Wheeler, J.,

Under the charge of the Court as applied to the evidence, the jury, in finding a verdict for the plaintiff, must have acted under the conviction, that the negro was diseased at the time of the sale and warranty, and that, that disease caused Ms death. That was what the evidence conduced to prove ; and it was only upon that supposition, or belief, that the jury could have found a verdict for the plaintiff. If the evidence was sufficient to warrant that conclusion, the verdict was right, and in accordance with the previous decisions of this Court. (Murphy v. Crain, 12 Tex. R. 297 ; McKinney v. Fort, 10 Id. 220.) - The evidence, it must be admitted, is not very satisfactory, as to the fact of disease or unsoundiiess at the time of the sale. And it is to be regretted that .the rights of parties must be finally determined upon evidence, wMch is not more convincing and satisfactory. But we. cannot say, that the jury were not warranted by the evidence,, in coming to the conclusion at which they arrived ; or that.'the Court erred in refusing a new trial on that ground. .The evidence before the jury certainly conduced to support the,., verdict ; and it is a circumstance not to be disregarded, that, the defendants offered no evidence to the contrary, except , the testimony of a witness, as to the apparent soundness of the negro for a few days before the sale ; and that was but. little more than appeared from the plaintiff's evidence. If the. supposed unsoundness existed, it is evident from the testimony., of the plaintiff’s witnesses, that it was not so apparent as to;-attract observation; or as to be likely to be known to one whose acquaintance with the negro was of but few days duration. It does not appear how long the defendants had owned him or what means they had of proving what had been his previous state, as to health and soundness. But the reasonable supposition is, that they were better informed upon that subject than the plaintiff: and that, if he had not previously exhibited symptoms of the disease which caused his death, they ■ might have obtained evidence to that effect. Such evidence, if it existed, must be supposed to have been more accessible to them than to the plaintiff: and had it been proved, by the testimony of those who had the means of knowing, that for any considerable length of time previously, the negro had been apparently sound, there can be little doubt, the verdict would have been different. The failure to afford any information as to the state of health and soundness of the negro, for any considerable time before the sale, must have operated very prejudicially to the defendants, upon the trial. If injustice has been done them by the verdict, it is probably to be ascribed to the want of proper diligence on their part, in preparing for the trial. If the truth and right of the case were with them, it would seem, they might have adduced some evidence to support that conclusion, for they had ample time to prepare for the trial.

The sole object of the newly discovered evidence, which was made a ground of the motion for a new trial, appears to have been, to discredit the testimony of one of the plaintiff’s witnesses. A new trial, it has been said, is rarely, if ever, granted on account of newly discovered evidence, if the only object of the evidence be to impeach the credit of a witness. (McIntire v. Young, 6 Blackf. 496 ; Reed v. Green, 5 Ham. 375 ; 2 Denio, 109 ; 11 Barbour Sup. Ct. 215.) The defendants were not unapprised of what was proposed to be proved by the witness j and if the application were supported by the affidavit of the witness, it would not present a case which would have warranted a departure from the general rule. But it rested on the unsupported affidavit of the party. He might, at least, have disclosed the source from which he derived his information, and proved by a disinterested witness that such information had been communicated, and that there was some reason to believe it to be true. We cannot say, that the Court ought to have been satisfied, from the statement of the party, that he would be able to prove what he proposed, upon another trial, if even that would have been sufficient. The application, upon this ground, was manifestly insufficient, under the oft repeated decisions of this Court. (3 Tex. R. 49 ; 4 Id. 311; 8 Id, 237 ; Id. 331 ; 10 Id. 268.)

The instruction asked by the defendant was rightly refused, for the obvious reason, that it asked the Court to assume, contrary to the fact, that the physician, to whose testimony it had reference, had not stated the facts on which his opinion was founded.

As to the measure of damages, the charge of the Court was in accordance with the rule maintained by this Court in the case of Anderson v. Duffield, (8 Tex. R. 237,) and, as we think, the correct rule, where the slave has died, or become valueless, and a total loss to the plaintiff. The same rule has been maintained by other Courts in this class of cases, though not, perhaps, with entire uniformity. Thus, in North Carolina, in an action for a breach of -warranty of soundness, where it appeared that the slave had taken the infection of the small pox, of which he died, it was held, that the price given for him, with interest, was the true measure of damages; he having been a total loss to the plaintiff, and there being no evidence that the price was not the market price. (Williamson v. Candday, 3 Iredell, 349.) And in South Carolina, it has been held, that in an action on the covenant of warranty of soundness, where there has been a rescission of the contract, or where the property is dead or valueless, the plaintiff is entitled to recover back his purchase money and interest. And where he has' offered to restore the property to the defendant, and he has refused to accept it, and the plaintiff has been compelled to keep the property, and incur expense on account of it, he may also recover such expenses. (Seibles v. Blackwell, 1 McMullan, 56.) So also in Mississippi, in such action, it is held that, if the slave proved to be worthless, the measure of damages should be the sum paid for the negro with interest. (Walker, 150.)

Where however the plaintiff has enjoyed the benefit of the services.of the negro, for any considerable length of time, and they have been valuable to him, such services ought to be an offset to the damages to the extent of their value. The value of the services, in this case, was not proved; but it would seem, from the evidence, that the negro performed the services of an ordinary hand, for a period of several months. The evidence, we think, was sufficient to extinguish the claim for interest ; and to that extent, the verdict is apparently excessive. The charge of the Court, as to the measure of damages, we deem to maintain the correct general rule; and had the attention of the Court been called to this point, by instructions asked upon it, the charge would doubtless have been so far modified as to have given the defendants the benefit of the value of the services of the negro while in the plaintiff’s service. But the point does not appear to have been suggested by counsel in the Court below, either by asking a proper instruction, or in their motion for a new trial: and on this account, there might, perhaps, be some difficulty in reforming the judgment in this respect, in this Court. But as the plaintiff has intimated a willingness to remit the interest, which will remove the difficulty, his remittitur will be received, and the judgment be otherwise affirmed, at the cost of the appellants.

. Judgment affirmed.