Houston v. Starnes, 34 N.C. 313, 12 Ired. 313 (1851)

Aug. 1851 · Supreme Court of North Carolina

34 N.C. 313, 12 Ired. 313

JOHN P. HOUSTON vs. CHARLES STARNES.

In an action for a breach of covenant in a warranty of the soundness of a slave the plaintiff may shew what the slave afterwards sold for, to aid the jury in estimating the damages.

Appeal from the Superior Court of Law of Union County, Spring Term 1851, his Honor Judge Battle presiding.

, The action is in covenant for the breach of a warranty of soundness in a bill of sale of a negro woman. The defendant sold the negro to the plaintiff and warranted her soundness. It was in evidence, that, at and before the sale,. the purchaser was apprised, that she had symptoms of disease upon her; and it was proved, she died of consumption, and that she had at the time of the sale the disease upon her.— The defendant contended, that the covenant did not extend to that disease, upon the alleged principle, that a general warranty does not extend to visible defects. The Judge held, that no defect, except such as was apparent to the senses, could be excluded from the operation of the covenant; and so charged. There was a verdict and judgment for the plaintiff, and the defendant appealed.

Thompson and Wilson, for the plaintiff.

Osborne and Hutchinson, for the defendant.

Nash, J.

The defendant has no reason to complain of the opinion upon this point- It was as favorable to him as it could be.

f: In the course of the trial the plaintiff offered evidence to show, that he had by his agent sold the negro in Mississippi for $175. This was objected to by the defendant's counsel, as incompetent on the question of damages. The objection was over-ruled and the testimony admitted. The witness then, in answer to a question, stated, that in her diseased state the negro was not worth more than 75 or $100.

There was no error in the admission of the evidence. The plaintiff was at liberty to show he had sold the slave, and, as a fact, to prove what he got for her. It did not establish her value, but was a fact, proper to be laid before the jury in the assessment of damages. The enquiry was, what was the extent oí the injury the plaintiff had sustained ? and the measure was the difference of the value of the negro, as sound, and diseased as she was — to be estimated by what she would bring in market. If the purchaser has sold, what he got for her may, or may not, assist the jury in estimating the damages. .It is a fact he may prove. But, if the evidence ought not to have been received, still the judgment should not be disturbed. It has done the defeii-■dant no injury, as it is evident the jury were not influenced in their verdict by the price given, but by the value fixed by the witness.

Fffa Cum am. Judgment affirmed.