Cobb v. O'Neal

• Decision Date: 31 December 1854
• Parties: JOSHUA COBB v. CHARLES O'NEAL.
• Court: Tennessee Supreme Court

34 Tenn. 438

JOSHUA COBB

v.CHARLES O'NEAL.

Supreme Court of Tennessee.

December Term, 1854.

FROM MONTGOMERY.

This action on the case, instituted in the circuit court of Montgomery, by Charles O'Neal against Joshua Cobb, was submitted to a jury of said county at the January term, 1854, and resulted in a verdict and judgment for the plaintiff; Pepper, J., presiding. The defendant moved for a new trial, which the court overruled, and he appealed in error to this court.

Henry and Shackleford, for the plaintiff in error; Robb and Bailey, for the defendant in error.

McKinney, J., delivered the opinion of the court.

This was an action on the case, to recover damages for the unsoundness of a slave, brought by O'Neal against Cobb. The declaration contains two counts: the first, for a false and fraudulent representation of soundness; the second, for fraud and deceit in the sale of the slave, founded upon the circumstances of the case. The case was tried at the January term, 1854, of the Montgomery circuit court. The plaintiff recovered $833.75 damages, for which judgment was rendered; and, a new trial having been refused, the case is brought to this court by an appeal in error. It appears, from the proof in the record, that a short time prior to the 26th of May, 1853, an agreement was entered into between Cobb and O'Neal, for the purchase of a slave named Priscilla, by the latter from the former. It further appears that on the 31st of January, 1853, Cobb had purchased said slave from one Thomas C. Brunson, at the price of $800; and Brunson being a minor, one Tompkins, a responsible person, joined in the bill of sale to Cobb, which contained a warranty of the soundness of said slave. In the negotiation between Cobb and O'Neal, the former demanded $950 for the slave, provided he should execute the bill of sale to O'Neal; but proposed to take $750, if O'Neal would agree to accept a bill of sale for the slave from the said Thomas C. Brunson, who was still a minor. It is proved by a witness who was present at Brunson's store, in Clarksville, on the 26th of May, 1853, where Cobb, O'Neal, and Brunson were talking over the trade, just before the bills of sale from Cobb to Brunson, and from Brunson to O'Neal were executed, that he, the witness, heard the slave, Priscilla, cough, and asked her about it; she said she had been sick for some time, and had a severe hemorrhage of the lungs. Witness told O'Neal and Cobb what the slave had just said; Cobb replied that “she was merely putting on, she did not want to go to the country; that she was sound, and he would warrant her to be so.” The witness further proves that O'Neal agreed to take the bill of sale from Brunson, but said that, as Brunson was a minor, he would look to Cobb for the soundness of the negro.

The bills of sale were then executed: first, a bill of sale for said slave from Cobb to Brunson, and then a bill of sale from Brunson, each containing a warranty of soundness. The $750, the price of the slave, was paid by O'Neal to Cobb.

The proof of physicians, who examined the slave a few days after the purchase by O'Neal, shows that she was laboring under consumption, and that from the indications, the disease must have been of several months standing, and that the slave was of no...