Mckinney v. Fort

• Decision Date: 01 January 1853
• Citation: 10 Tex. 220
• Parties: MCKINNEY v. FORT.
• Court: Texas Supreme Court

10 Tex. 220

MCKINNEY

v.FORT.

Supreme Court of Texas.

1853.

Where a slave dies a short time after sale, it is necessary, in an action on the warranty, to prove not only that he was unsound at the time of the sale, but also that the unsoundness then existing was the occasion of his death. (Note 39.)

Where the plaintiff offered to prove a custom in Bowie county, “that when a man sold a negro, he gave a bill of sale of the same, warranting the title, soundness and sense of the same, in the absence of an express contract to the contrary:” Held, That the testimony was properly rejected.

The rule at common law now appears to be that the purchaser buys (a slave) at his own risk, (as to soundness,) unless the seller give either an express warranty, or unless the law implies a warranty from the circumstances of the case, or the nature of the thing sold, or unless the seller be guilty of a fraudulent concealment or representation in respect to a material inducement to the sale. (Note 40.)

A fair price implies a warranty of title, but not, unless under special circumstances, a warranty of soundness.

It may be laid down as a rule condensed from the authorities, that if the defect in the article be equally open to the observation of both parties; if the means of information be equally accessible to both; if neither says or does anything tending to impose upon the other, and if the one in possession of the material facts, knowing the other to be ignorant of them, be under no special obligation by confidence reposed, or otherwise, to communicate them fully and fairly, then the disclosure of this superior knowledge as to facts affecting the value of the commodity is not requisite to the validity of the sale.

See this case for circumstances under which the sale of an unsound slave for a sound price, without express warranty, was sustained.

A bill of sale is not essential to vest the title to a slave in a vendee.

Where there was a verbal agreement for the exchange of a slave for a certain quantity of cotton, the slave to be at the risk of the owner of the cotton, and the cotton to be at the risk of the owner of the slave from the time of the agreement, and the slave and cotton were both delivered in pursuance of the agreement, the owner of the slave promising to make a bill of sale of the negro at the next term of the District Court; the bill of sale was not made, and the slave died: Held, that the property in the slave passed at the time of the delivery, or rather, under the facts of this case, the property, on payment of the consideration, attached to the purchase.

See this case for an instance in which there was a question whether fraud was alleged or not.

Where fraud is not alleged, it is proper for the court to charge the jury that “no evidence of fraud can be taken into consideration” by them, notwithstanding the evidence may have been admitted without objection. (Note 41.)

Appeal from Bowie. The plaintiff, McKinney, in December, 1846, purchased from Fort, the defendant, for thirteen thousand pounds of ginned cotton, which he delivered, a negro man named Washington, who died in the following month of May. This action was brought for the recovery of the purchase-money or the value of the consideration, on the ground substantially that the slave was unsound at the time of the sale. The petition contained several counts, one of which was as follows: “And the said McKinney further states that in consideration that your petitioner would deliver the said Fort other thirteen thousand pounds of ginned and baled cotton at McKinney's gin, in Bowie county, on the ____ day of December, 1846, he, the said Fort, agreed that he would bargain, sell, and convey, by good, legal, and sufficient title to your petitioner a certain negro slave named Washington, about twenty-two years of age, and of the value of fourteen hundred and fifty dollars; and your petitioner avers that he did then and there deliver to said Fort said thirteen hundred pounds of ginned and baled cotton; yet said Fort refused and neglected to convey to said McKinney, by good and sufficient title, said negro slave Washington, aged as aforesaid; but having received said last-mentioned cotton, afterwards, to wit, on the ____ day of May, 1847, the said negro died, the property of said Fort, whereby an action hath accrued,” &c.

The circumstances (as stated by the witness Alford) attending the original agreement for the purchase were that “the plaintiff came to the defendant's plantation for the purpose of purchasing the boy Wash, stating as a reason that he owned Wash's wife, and that being about to remove to Collin county, he did not like to separate them. The defendant proposed to purchase the girl, but the plaintiff refused to sell, on the ground that she was a present to him, and was not suitable for a plantation negro. It was finally agreed that the plaintiff should give a certain amount of cotton for the boy; the cotton was to be delivered in some few weeks, and the defendant was to keep the negro some short time and then deliver him to the plaintiff. Not a word was said as to title or soundness of the property. The parties agreed it was not necessary to clothe their agreement in writing, mutually confiding in the word of each other to carry out the contract.”

A witness, (Wright,) who was the overseer of the defendant, and who was present at the delivery of the cotton, stated that it was agreed that the cotton, if lost, should be the loss of the defendant; and if the negro died, it was to be the loss of the plaintiff; and he, the witness, was to deliver the boy to McKinney that night, which he accordingly did. It was also in evidence that the plaintiff, about the time of the delivery of the cotton, asked for a bill of sale, which the defendant promised to deliver to him at the next term of the District Court.

William Ellett, a witness for plaintiff, testified that “about the 1st of May, 1847, he, witness, was at the house of defendant, and heard him state to D. Dunman that he had sold his negro boy Wash for twenty-five or twenty-six bales of cotton; did not recollect the precise amount; that he said he expected to get ten cents per pound for it, which would be enough to buy two good negroes; that defendant paused a short time and then remarked that ‘he was not a well negro at that;’ that it was said in a boastful manner, but that the impression was produced on his mind that defendant had been guilty of a fraudulent transaction; and that the reason why he, the witness, recollected it was that there was then an attempt being made to establish a church, and that he and defendant were of the number of the members; that witness remarked to his wife, who was with him at the time, that he thought defendant had been guilty of a fraudulent transaction. On cross-examination, witness stated that he had not caused defendant to be charged before the church, because, by the regulations, an informant could not be a witness.”

The opinion of the court states some other facts corroboratory of the above.

There was a bill of exceptions, as follows:

“Be it remembered that, during the trial in the case, the plaintiff proposed to prove by J. A. Talbott and H. S. Janes that they had lived in this county for about twenty years, and were acquainted with the custom of the country in Bowie county relative to the sale of negroes, and that it was the custom that when a man sold a negro that he gave a bill of sale of the same, warranting the title, soundness and sense of the same in the absence of an express contract to the contrary; which testimony being objected to, the judge sustained the objection, to which plaintiff excepts.”

The judge charged the jury, “1st. That a sound price does not imply a soundness of property.

2d. That a jury may infer that a delivery of the negro and removing him from the county was a waiver of the bill of sale by McKinney.

3d. That it was not necessary that Fort should give a bill of sale to make a complete conveyance of the negro, if he made a delivery of the negro.

4th. That there is no fraud charged in the petition, and therefore no evidence of fraud committed by Fort can be taken into consideration by the jury.

5th. That if there was no contract of express warranty there is no implied warranty from the fact that there was a sound price.”

The judge refused charge “3d.--That if a person sell a slave for a full price that the slave would be worth if sound in every respect, and the vendor agreed at the time of receiving the payment to make a bill of sale and send it to the vendee, and if nothing was said as to what kind of a bill of sale was to be made by the parties, the law would require the vendor to make a bill of sale with a covenant of warranty of title and soundness of the slave.

And 8th.--That if McKinney gave the full price of a perfect sound slave, and the negro was unsound at the time of delivery, and afterwards died of that unsoundness, that he is in law entitled to recover back the price paid for the negro, if he did not know of the unsoundness at the time of the purchase, and the unsoundness was known to the other party, even if there was no express warranty of soundness.”

Morrill & Dickson, for appellant. The first and fifth charges given, and the two requested charges which were refused, are in substance, with some variations, the same. They involve the legal question whether a sound price implies a warranty of soundness, and the one refused, numbered eight, in addition, involves the question whether a sound price implies a warranty of soundness if the purchaser did not know of the existence of the unsoundness, and if the seller knew the same, or, in other words, whether or not fraud is to be tolerated in the courts of Texas.

I am aware that it is laid down as law in some of the United States, and in some periods of the jurisprudence of England also, that “a sound price does not imply a soundness of property.” But, in those very c...