73 U.S. 254 - Andrews v. Hensler

ERROR to the Circuit Court for the Eastern District of Louisiana.

In March, 1859, the plaintiff purchased four slaves of the defendant at New Orleans, giving a draft payable at a future day for the payment. The slaves proving, as was now alleged by the purchaser, to have been afflicted with various i curable diseases, &c., he brought suit for a rescission of the sale, the restitution of the price, and for damages; a sort of suit called, in the language of the code of Louisiana, a redhibitory action; Redhibition, by the code,* being defined to be 'the avoidance of a sale on account of some vice or defect in the thing sold, which renders it either absolutely useless, or its use so inconvenient and imperfect that it must be supposed that the buyer would not have purchased it had he known of the vice.'

The petition alleged that the plaintiff purchased the slaves, with full warranty against all the vices and maladies prescribed by law; that they were, however, at the time afflicted with various specified vices and maladies; that these were unknown to the plaintiff, but were known to the defendant; that they were of such a grave character as to render the slaves 'absolutely useless, or their use so inconvenient and imperfect' that the plaintiff would not have purchased them had he known at the time of the defects; and that from the vices and maladies two of the slaves had died since the sale.

It further alleged that after the sale the plaintiff tendered the slaves back to the defendant and demanded the return of the draft, and the avoidance of the sale, in consequence of the redhibitory defects, but that the defendant refused to receive the slaves, to cancel the sale, or to return to petitioner the draft, and to pay him his damages.

It concluded with a prayer that the sale might be annulled, and the defendant condemned to return the draft, and to pay the costs that the plaintiff had incurred for the care and medical treatment in consequence of the sale, and false representations.

The first answer of the defendant to the petition consisted of a general denial. An amended answer, filed by permission of the court, averred in substance that the auctioneer, who sold the slaves for the defendant, declared at the time, at his request, that they must be examined by the physician of the purchaser previous to their delivery, but that the plaintiff was in such haste to obtain possession of the slaves purchased, that he removed them without examination, before the act of sale was passed; and hence insisted that if any loss had occurred to the plaintiff it had been through his own negligence and disregard of the terms of sale, for which the defendant is not responsible.

On the trial, the plaintiff contended that the special defence set up in this amended answer, was a waiver of the general denial, and that it admitted the liability of the defendant to refund the price of the slaves for the defects stated in the petition, and placed his discharge from such liability upon the neglect or disregard by the plaintiff of the terms of the sale, and requested the court to instruct the jury to that effect. The court refused to give the instruction and the plaintiff excepted.

A question having arisen at the trial as to the term within which it was necessary for the plaintiff to tender or offer to return the slaves to enable him to avoid the sale, and maintain a suit for its rescission, the court charged 'that in order to a complete rescission of the contract, the tender should have been made in a reasonable time; and if the jury found that it was not made in a reasonable time, the plaintiff was only entitled to recover for the damages he had sustained by the slaves being defective.'

To this instruction the plaintiff excepted, contending that he had a year in which to return them; the code of Louisiana, as it then existed, providing that actions for the rescission of contracts for the sale of slaves on account of redhibitory defects must be brought within one year from the date of the sale.

The correctness of the views of the court below was now the matter for examination here.

Mr. Soule, for the plaintiff in error; Mr. Stansbury, contra.

Mr. Justice FIELD, after stating the case, delivered the opinion of the court as follows: