Smith v. Taylor

Bullard, J. The plaintiff claims in this action the rescisión of a sale, and the restoration of the price of a slave purchased of the defendants, on the allegation that he was a habitual runaway and a thief. There was a verdict for the plaintiff, and from a judgment pronounced thereon the defendants prosecute this appeal Upon the merits, the verdict appears to us to have been rendered upon sufficient evidence; but the appellants apply for a reversal of the judgment upon several grounds, which we proceed to notice. 1st. That no offer to restore the slave was shown upon the trial of the cause. Upon this point it is to be remarked, that the allegation of an offer to restore the slave before the institution of the suit, was made in a supplemental petition, which was never answered, and a judgment by default was taken upon it. The evidence of such an offer is not direct and positive; but it is shown that the parties were in treaty to compromise the difficulty which had arisen between them, and that one of the defendants said he had proposed to the plaintiff to give him another negro in the place of the one sold to him. The jury might well infer from this evidence, that the defendants had been sufficiently put in default before this action was brought. See Hivert v. Lacaze, 3 Robinson, 357. 2d. It is next contended that the plea of prescription was improperly overruled, the suit not having been brought until more than one year after the sale. ’ It appears that when the year was about to expire, the clerk of the District Court for the parish of East Feliciana, who was, at the same time, a member [135] of the Legislature, was attending’ to his duties in that capacity, having left a deputy in charge of the office, and that the deputy was also absent from the parish for several days before and after the year expired. It further appears that the petition was deposited in the office, by the attorney of the plaintiff, before the year had elapsed, but that it could not be regularly filed, nor citation issued in consequence of the absence of the clerk and his deputy. These facts were shown by the testimony of witnesses, who were, in our opinion, properly permitted to testify, notwithstanding the objection of the defendants’ counsel, that one of the witnesses, who was the attorney of the plaintiff, was interested, and that parol evidence is inadmissible to explain, contradict, strenghthen, or create a record. The object of the evidence was neither of these, but to show a fact, to wit, the absence of the clerk and his deputy, which rendered it impossible to institute a suit until after the expiration of the year-We think it clearly a case in which the maxim applies — “ contra non valentem agere, non currit prescription The plaintiff had until the last day of the year to commence proceedings, and was not obliged to procure process of citation before. If, at that time, there was an impossibility to obtain the necessary process, the prescription was suspended. 7 Mart. N. S. 471. 3 La. 221. The court did not, in our opinion, err, in permitting the testimony of certain witnesses, taken under commission, to be read to the jury, except certain answers, which appeared to the court to contain statements founded on hearsay. The other answers thus admitted, do not appear liable to the objection set forth in the bill of exceptions; nor did the court err, in our opinion, in permitting parol evidence to show an agency in relation to the sale of slaves, when the object of such evidence is neither to make nor to destroy title to slaves, but merely to prove an authority to negotiate as an intermediary between the owner and persons applying to purchase. Judgment affirmed»