Hook v. Stovall

Decision Date31 January 1859
Citation26 Ga. 704
PartiesEdward B. Hook, plaintiff in error. vs. Stovall, Dunn &Co., defendants in error.
CourtGeorgia Supreme Court
*

Complaint, in Jefferson Superior Court. Tried before Judge Holt, at June Term, 1858.

This was an action by Stovall, Dunn & Co. against Edward B. Hook, on a promissory note for $630, dated March 6th, 1852, and payable on or before the 1st day of January, 1853. The defendant pleaded: First, the general issue; second, partial failure of consideration in this: that said note was given for a negro bought by defendant from plaintiffs, which said negro plaintiffs warranted to be sound, whereas, the fact was otherwise, the negro being, at the time of sale, unsound, having a disease in one of her eyes, which greatly depreciated her value; third, total failure of consideration in this: that by reason of said diseased eye, said negro was of no value to defendant, and the consideration of said note had totally failed.

The plaintiffs offered in evidence the note sued on and closed. The defendant submitted his proofs. The plaintiffs replied and closed the case. One of the counsel for plaintiffs was about to open the case to the jury late in the evening, when one of the jury complaining of indisposition, the case was adjourned over until morning. The Court permitted the jury to separate without the usual instructions not to allow any one to converse with them in relation to the case, although requested to give such instructions by defendant's counsel.

At the opening of the Court the next morning, the counsel for plaintiffs made a motion before the Court to permit them to offer other testimony which they had discovered since the adjournment of the Court the evening before, andmade affidavit to that effect; which motion was resisted by defendant\'s counsel, upon the grounds, first, that there was no rule of practice allowing such a proceeding; and second, that it would be establishing a very dangerous practice; which objections were overruled by the Court.

Whereupon the plaintiff then introduced one of the jurors, Elisha Smith, who testified that he was at defendant's house before he left the Carson place; thinks it was in 1855 or '56, but is not certain, that it might have been in.1854; heard defendant say that he would not take one thousand dollars for the girl; is not certain whether the conversation occurred in 1854 or 1855; that he had mentioned this fact to Henry Farmer, one of his brother jurors in the case, and that he had told it to no one else. He also stated that said conversation had stayed by him, and would always do so—that it had its effect on his mind, and would always do it, and would influence him in making up his verdict. When asked by the Court if the impressions of that conversation would influence his mind in giving a verdict in said case, irrespective of other testimony in the case, he replied that it would not, and that he did not know how the fact of the conversation with the defendant, above stated, was communicated to the plaintiffs since the adjournment of the Court the evening before.

The defendant's cousel objected to the conversation testified to by said Smith, because it was not proven to have taken place subsequent to the development of the disease in the eye, which objection was overruled by the Court, and the witness permitted to testify.

The defendant's counsel then moved that the case be withdrawn from the jury, upon the ground that the testimony of the juror, Smith, clearly showed that he was not an impartial, unprejudiced and competent juror, which motion was overruled by the Court.

The plaintiffs then introduced Reuben Carswell, Esq., who testified that it was his impression that the defendant livedat the Carson place in December, 1855; would not be certain. It might have been in July of that year.

Plaintiffs then introduced William A. Stokes, who testified that defendant left the county about two years ago, and left the Carson place about three or four years ago, about the year 1854 or 1855.

Plaintiffs then finally closed their case.

The defendant then recalled the plaintiff's witness, Henry Farmer, one of the jurors, who testified that Elisha Smith, one of his brother jurors, told him that he would tell him something when they went into the jury-room that would influence his (Farmer's) verdict, but that said Smith was mistaken in his testimony when he testified that he had told him (Farmer) what Hook had said about the value of the negro, in the jury box—that he (Farmer) had not communicated what the said Smith had told him, to plaintiffs or any one else, and does not know how the plaintiffs got the information.

Then the defentant finally closed his case.

After argument had before the jury from both sides, the Hon. Wm. W. Holt presiding, charged the jury as follows:

Gentlemen of the jury, much upon which you will have to pass in making up your verdict in this case, seems to be admitted, at least has not been contested before you; that the defendant made the note upon which suit is brought, that its consideration was the price of the female slave sold to him by the plaintiffs, and that in the sale she. was warranted by the plaintiffs to be sound in every respect.

It is upon this warranty of soundness the case principally turns. In the bill of sale she is described as having one eye larger than the other, and the defendant alleges that this enlargement of the eye is a disease, and that the slave being thus unsound at the time of sale, the plaintiff's covenant is broken, and that he has a right to an abatement from herprice equivalent to the damages he has thereby sustained. The question of soundness or unsoundness is therefore directly submitted to you, and is to be decided upon the evidence produced by the parties. The defendant relies upon the opinion of two physicians, whose testimony you have heard, and upon the facts testified to by the woman in whose employment the slave was when her first child was born, of an increased enlargement of the eye consequent upon that event.

The plaintiffs rely upon the fact that the defendant kept the slave for three years without complaint of unsoundness, or offer to return her and cancel the contract of sale, he himself being a skillful physician. This he was not bound to do to entitle him to the benefits of the plaintiff's covenant; yet it is a fact, being the conduct of the defendant himself, which may be considered by you in determining the question whether that covenant has or has not been broken. If you find it to have been broken, the next thing to be considered by you will be, the damages which the defendant has thereby sustained, the just measure of which is the difference in the value of the slave sound and unsound. Her value as sound is agreed between the parties in the price to be paid. Of her value as unsound, you have the testimony of the witnesses that have been examined to that point, and the admissions of defendant as they have been given in evidence upon which you must decide, and these admissions of the defendant should have more or less weight, according to the opportunities the defendant had at the time they were made, of knowing the actual condition of the slave. Whatever difference you may find must be deducted from the note.

But, although you find the covenant to be broken, if you find that at the time of the sale the slave in her unsound state was worth the price for which she was sold, the defendanthas sustained no damage. The whole case is submitted to you upon the testimony.

The counsel for the defendant, amongst other things, requested the Court to charge the jury:

1st. That before they can find the full amount of the note sued upon to be due, they must first find that the eye was not diseased at the time of the warranty.

2d. If the jury believe from the evidence that the negro girl, Mary, was unsound at the time of the sale, then that the sayings of defendant as to his valuation of the negro girl are entitled to no consideration or weight in reference to the question of soundness or valuation of the negro girl, unless said sayings are proven to have occurred subsequently to the development and increased action of the disease.

3d. If it has not been proven to the jury that the defendant's valuation or consideration in relation to the valuation of said girl occurred after the development and increased action of the disease, the jury should exclude said conversation in their consideration and investigation of the issue in the case.

4th. The opinion of Drs. Dixon and Campbell in relation to what they consider the negro girl worth in their estimation, is proper evidence to be considered by the jury, as the opinion of experts.

5th. If Hook, the defendant in this case, had even paid portions of the purchase money from time to time, still it would not preclude him from holding plaintiffs to a strict compliance with their contract under warranty.

Which charges the Court refused to give, and defendant excepted.

The jury found for the plaintiffs the full amount of the note, with interest and cost of suit. Whereupon defendant excepted and assigns as error the rulings, decisions, charges and refusals to charge above set forth.

James S. Hook; and John Schley, for plaintiff in error.

E. H. Pottle, contra.

By the Court.—McDonald, J., delivering...

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8 cases
  • Estill v. Citizens' & Southern Bank
    • United States
    • Supreme Court of Georgia
    • 15 June 1922
    ...... for its introduction rests upon hearsay evidence. Beale. v. Hall, 22 Ga. 431; Hook v. Stovall, 26 Ga. 704; Bone v. Ingram, 27 Ga. 382; Evans v. Baird, 44 Ga. 645. So the court did not err in refusing. to open the case for ......
  • Estill v. Citizens' & Southern Bank
    • United States
    • Supreme Court of Georgia
    • 15 June 1922
    ...and vital evidence when the foundation for its introduction rests upon hearsay evidence. Beale v. Hall, 22 Ga. 431; Hook v. Stovall, 26 Ga. 704; Bone v. Ingram, 27 Ga. 382; Evans v. Baird, 44 Ga. 645. So the court did not err in refusing to open the case for the introduction of the evidence......
  • Studebaker Corporation of America v. Hanson
    • United States
    • United States State Supreme Court of Wyoming
    • 17 May 1916
    ...... giving of said instructions and were reversible error. (Mechem on Sales, Sec. 1817; Hook v. Stovall, 26 Ga. 704; Park v. Richardson Co. (Wis.) 64 N.W. 859;. Douglas v. Moses, 65 N.W. 1004.) The true measure of. damages for breach ......
  • Atlanta Tallow Co. v. John W. Eshelman & Sons, Inc., s. 40722
    • United States
    • United States Court of Appeals (Georgia)
    • 12 November 1964
    ...the ruling in that case is directly controlling. In addition to the cases heretofore discussed, see the following: Hook v. Stovall, Dunn & Co., 26 Ga. 704(4); Gaulden v. Shehee, 30 Ga. 948; Clark & Co. v. Neufville, 46 Ga. 261, 265; Morris v. Barnwell, 60 Ga. 147, 149(2); Butler v. Moore, 6......
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