Franklin v. Ezell

• Decision Date: 31 December 1853
• Citation: 33 Tenn. 497
• Parties: BENJAMIN FRANKLIN v. GEORGE W. EZELL.
• Court: Tennessee Supreme Court

33 Tenn. 497

BENJAMIN FRANKLIN

v.GEORGE W. EZELL.

Supreme Court of Tennessee.

December Term, 1853.

FROM GILES.

The plaintiff, by his agent, sold to the defendant a female slave for $700, and this action of debt was brought to recover the amount of a note given in part payment. The agent was authorized to “sell and dispose of” the slave, and gave the defendant a warranty of soundness in the name of the plaintiff, without seal. It appears that the slave, at the time of the sale, was wholly valueless on account of disease, and the defendant offered her back to the plaintiff. This fact of unsoundness and fraud was specially plead by the defendant, upon which there was issue. It seems, also, that the fact of unsoundness must have been known to both the plaintiff and his agent. The case was submitted to a jury of Giles county, at the August term, 1853, of the circuit court, before Hon. W. P. Martin, judge, when there was verdict and judgment for the defendant; from which the plaintiff appealed in error to this court.

Brown and Walker, for the plaintiff in error; T. M. Jones, for the defendant.

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

This was an action of debt, in the circuit court of Giles, brought upon a bill single for $393, executed by Ezell to Franklin on the 6th of May, 1851.

This note formed in part the consideration agreed to be paid for a female slave, purchased by Ezell from the agent of Franklin. The purchaser was in the state of Mississippi, on the day the note bears date. Franklin was a resident of Tennessee, and on the 21st of April, 1851, he gave a written authority to Fitzpatrick “to sell and dispose of” said slave, in pursuance of which the agent made the sale to Ezell, at the price of $700, and executed a bill of sale in the name of his principal, without seal, warranting said slave “to be sound and healthy.”

The proof shows that on the next day after the sale the slave was examined by the physicians, and was found to be laboring under umbilical hernia in a most aggravated form, and to such extent as in the opinion of the physicians to be incurable, and to render the slave almost, if not altogether, valueless.

The evidence tends to establish that the agent, on his way to Mississippi with the slave, became fully aware of her diseased condition, if not informed of it before; and from all the circumstances of the case it is fairly to be presumed that the injury to the slave, which perhaps had been of recent origin, was perfectly well known to Franklin, and was the sole cause for sending her off to be sold. A special plea, setting up the fraud and failure of consideration, was pleaded in bar of the action, upon which issue was joined. The jury found the issue in favor of the defendant, and a new trial being refused, an appeal in error was prosecuted to this court. Several objections have been urged against the judgment, in the argument here, none of which, in our opinion, are tenable.

1. There can be no doubt but that, in the present state of our law, the matter of the plea in bar constitutes an admissible defence to an action at law upon a bill single. Prior to ...