Fuentes v. Caballero

The judgment of the court was pronounced by King, J. The plaintiff, F, Fuentes, instituted this suit to recover from tho defendant, Caballero, the price of a female slave, sold by tho latter to the former, alleging that, at the time of the salo, she was afflicted with a redhibitory disease, of which she subsequently died. The defendant called Barnada Lian28 dro and Antonio Gavañac, in warranty. The cause was submitted to .a jury, w^° 1,endored a ’verdict in favor of the plaintiff, for the price of the slave, and $200 for expenses incurred, and in favor of defendant against his warrantors for the price of the slave, and $200 for expenses. A judgment was rendered in the court below in conformity with, this verdict, from which the warrantors, after an unsuccessful application for a now trial, have appealed. The plaintiff and defendant .acquiesce in the judgment, take no appeal, and, as between them, no question arises. The grounds relied upon in the court below, and urged in this, in support of the application for a new trial are : 1st. That tire verdict is contrary to law and evidence. 2d. That the sum of $200, awarded as expenses, was not proved. 3d. That the court erred in allowing receipts of the Charity Hospital, for care given to Mary Ann, which was not tire name of the slave whose price was in .contest, to go to the jury. These will be considered, inverting their order; I. In the petition it is specially averred, that the plaintiff, “ as soon as he dis? covered that the slave was afflicted with a chronic and incurable malady, applied to the defendant to take her back, and -return the purchase money” ; and the allegation is fully supported by the testimony of _E. Briggs, the attorney originally employed to institute the suit. It is true that the person of the slave was not actually produced and tendered to the defendant. This, however, has been not to be necessary, where the offer to return has been ¡rnad.e and rejected. 18. La. 599. • II. ‘The judge did not err in permitting the receipts of the Charity Hospital, for services rendered to Mary Ann, accompanied, as they were, with other .evidence that the sums had been paid, to go to the jury. The objection could only bo to their effect, leaving the identity of the pers.on named in the receipts with the slave described in the act of sale to be subsequently established; and this appears to have been done satisfactorily to the jury. III. The finding of the jury is in the following words: “Verdict in favor of tho plaintiff, with medical attendance and funeral expenses, with costs of the court. Price of .slave $750 ; expenses $200=$95.0. Verdict in favor of defendant against the warrantors, with professional and funeral expenses, and costs of the court. Price of the slave $680 ; expenses incurred $200=$880.” When tho seller is ignorant of the vices of the thing sold, he is only bound tq ■restoro tho price, and to reimburse the expenses occasioned by the sale, as well as those incurred for the preservation of the thing. Civil Code, art. 2509. The costs of suit, fees of counsel, and funeral expenses, are not included among the charges to which the seller is, in such cas.es, subjected. It is only where he knows the vice, and omits to declare it, that he is answerable in damages. Civil Code, art, 2523. In the present instance no such previous knowledge is allogod in the pleadings, and we think none was proved on the trial. It becomes necessary to correct the verdict, as far as relates to the sum awarded to reimburse expenses incurred. The evidence shows, that the slave was ip the hospital sixty-thi-.ee days, at ono dollar a day. Jt was urged in the court below, upon the motion for a new trial, that the slave had been sold to Caballero by Liandro alone, the wife of Gavañac, whereas a judgment has been rendered against both these parties. The answer of the district judge to .this objection is conclusive. The defendant in his answer [29] avers, that ho purchased from both tho warrantors, and the latter, In their answer, say, that their slave, when they sold her to Caballero, was sound and healthy. Their joint ownership is no where denied in the pleadings. Schmidt, for the plaintiff. Bodin, for the defendant.' Canon, for the appellants. With the exception of tile error already noticed, we think that the evidence supports the verdict of the jury; and the means being furnished in tho record of malting the correction, justice does not require that the cause be remanded. It is, therefore, ordered, adjudged and decreed, that so much of tho judgment of tiie District Court, as awards the sum of $200 to the defendant, to be paid by the warrantors for expenses, be annulled and reversed. It is further ordered, that the defendant recover of the warrantors $63, the amount of expenses incurred for the medical treatment of the slave Mary. In other respects said judgment is affirmed as between the defendant and warrantors ; the defendant, Caballero, paying tho costs of this appeal.