Serapurn v. Bousquet

15 La. 509 | La. | 1840

Simon, J.,

delivered the opinion of the court.

This suit is brought on a promissory note. The defendants admit their signature, and aver that the note was given in consideration of the sale of a negro boy, warranted free from any of the vices and maladies pointed out by law, but that a few weeks after the sale, the negro died ; and that his death'was occasioned by a disease which, within the knowledge of the plaintiffs, he was afflicted with at the time of the sale.

The district judge deducted the price of the slave from the amount of the note, and gave judgment for the balance in favor of plaintiffs, who, being dissatisfied therewith, took the present appeal.

Several witnesses have been examined, to prove the cause of the death of the slave ; and their evidence shows that his death was produced by an acute disease, that had just made its appearance at the time of the adjudication, and which the physicians who have testified, qualify to be a gaslro autérite. The existence of this malady, which lasted for about a month, was ascertained two or three days after the sale at auction ; i, i . and although defendants could not have been deprived of their recourse in warranty, because it was announced at the time, that the negro had been sick with the fever for three or . . . . four days previous, still, it was a sufficient warning to induce them, as prudent men, to procure medical aid, and to have the negro regularly attended to by a physician. According to the opinion of the two physicians, one of whom was called only once, two or three days after the adjudication; and the other, two or three days before the death of the negro, and when, as he states, the slave was in the last period of the , . malady, and in a desperate state, lhe disease was not incurabie by its nature, nor had it become so by the progress it had made at the time of the adjudication. Had it been proven by the defendants, that the slave had received at their hands all the necessary care and assistance, and that they had done every thing in their power to effect his recovery, by affording him such medical aid as the nature of his malady required, there would have been no doubt, under the circumstances, of their being entitled to the reimbursement of the price and of the expenses; but it appearing, from the evidence, that they did not act as prudent men would have done, and that, so far as it has been shown, the death of the slave may be attributed to their fault and neglect, we . think they ought not to recover, and that the district judge erred in discharging them from the obligation of paying the price of the slave,

Where purchasers of a slave, who became sick and died soon after, did not act as prudent men would have done, and the loss of the slave may be attributed to their fault and neglect, they cannot avail themselves of redhibition.

It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be annulled, avoided and reversed; and that the plaintiffs do recover of the defendants, the sum of five hundred and fifty-two dollars, with five per cent, interest per annum thereon, from the 3d of April, 1838, until paid, with the cost of protest, and costs in both courts.