Turner & Renshaw v. Wheaton

Morphy, J. delivered the opinion of the court. The defendants being sued as the drawer and endorser of a note of hand; Wheaton, the drawer, pleaded in answer and reconvention that the note had been given by him in part payment of the price of a negro woman purchased of plaintiffs. That the slave was a notorious thief and runaway, to the knowledge of the vendors, who concealed the fact, instead of declaring it, as they were bound tp do.' There was a judg [39] ment below rescinding the sale and decreeing the reimbursement of such part of the price as had been paid. Tine exclusion of warranty in a sale, does not absolve a vendor from the obligation of disclosing the red-hibitory vices not apparent. Where the seller failed to inform the buyer that the slave was a runaway, it was held sufficient to rescind the sale, altho’ sold without any warranty except as to title. It appears from the record that the slave was warranted only as to title, hut not as to' the vices and maladies provided against by law. This court has always held that the exclusion of warranty in a sale does not absolve a vendor from the obligation of disclosing the vices, not apparent, which he knows to exist.' — '6 M. R. p. 699 — 7 M, R. 33. — La. Code, art. 3526. As to the evidence it satisfies us, as it did the Judge below, of the existence of the vices complained of; and of plaintiff’s knowledge, of at least one of them. The circumstance of their vendor testifying that when he informed them that the slave was a runaway, he told them at the same time where she would probably go, cannot assist plaintiffs. Had they made the same communication to Wheaton, he would not perhaps have made the purchase. The same witness informs us that whenever she ranaway from plaintiffs she did not come directly to his house; that he understood from plaintiffs on those occasions that she had been absent two or three days before she was found at his house. The testimony of several other witnesses shows that her had habit began long before the sale, and continued while she was in the possession of defendants. One of the witnesses represents her as such a worthless creature that he would not take her as a gift, with the obligation of keeping her six months. The judgment of the District Court is therefore affirmed with costs.