Nelson v. Johnson

• Decision Date: 31 July 1857
• Citation: 25 Mo. 430
• Parties: NELSON, Plaintiff in Error, v. JOHNSON, Defendant in Error.
• Court: Missouri Supreme Court

25 Mo. 430

NELSON, Plaintiff in Error,

v.JOHNSON, Defendant in Error.

Supreme Court of Missouri.

July Term, 1857.

1. In an action for the price of slaves sold, the defendant may recoup the damages sustained by him by reason of a breach of warranty of the slaves.

Error to Cooper Circuit Court.

This was an action upon a promissory note for $300. The defendant set up in his answer that the consideration of the note had failed; that the note was given for part of the purchase money of two slaves sold by plaintiff to defendant; that the plaintiff had warranted the said slaves to be sound and healthy; that they were not sound and healthy as warranted. The court, at the instance of the defendant, gave the following instruction to the jury: “If the jury believe from the evidence that the note sued upon was for a balance of the purchase money of the slaves mentioned in the defendant's answer, and that said slaves were warranted by plaintiff to be sound, and either of them was unsound at the time of the sale, then they must take the same into consideration, and abate the note accordingly, and if the slave was lessened in value to the amount of the note, they must find for the defendant.”

Gardenhire and Morrow, for plaintiff in error.

Adams, for defendant in error.

I. A breach of warranty of soundness given on the sale of slaves is a good defense against a note for the purchase money, and may be set up, as it was in this case, by way of recoupment. It was the only defense relied upon in the answer, and was properly presented by the evidence and the instruction given on the part of the defendant.

II. The suggestion of surprise in the plaintiff's motion and affidavit for a new trial was the merest pretense. The affidavit upon its face showed that he must have known what the defense was, although he may never have in fact read or heard the answer read. It sets up as an excuse his own negligence. The case had been in court for more than eighteen months, and the answer had been filed in the cause for eighteen months, and the cause had been continued by the plaintiff himself from term to term on account of the absence of witnesses, and yet witnesses are not wanted for any other purpose than to rebut the proof of a warranty and its breach. Upon the trial the only evidence offered or given on either side was in relation to this issue alone, for there was no other issue in the cause. The plaintiff gave evidence to show that there was no warranty, and the receipt referred to in his affidavit (if there had been any such) was only cumulative, and would be no ground for setting the verdict aside, even if he had been surprised. (Beaucham v. Sconce, 12 Mo. 57.) The affidavit ought to have alleged due diligence, but instead shows the grossest negligence. Even if the party had been mistaken as to the nature of the defense, it would be no ground for a new trial. It was his duty to inform himself. The answer was open to his inspection, and if he failed to look at it, it was his own folly. The affidavit does not aver that the verdict is unjust, and, to warrant the court in interfering, such an averment is essential. (See Hanly v. Blanton, 1 Mo. 36; Mushen v. Judy, 4 Mo. 331; Elliot v. Leak, 4 Mo. 540; Stout v. Colver, 6 Mo. 251; Lisle v. State, 6 Mo. 426; Stegers v. Darby, 8 Mo. 679; Robbins v. Alton Marine & Fire Ins. Co. 12 Mo. 387; State v. Laramore, 20 Mo. 427; Wells v. Sanger, 21 Mo. 354.)

RYLAND, Judge, delivered the opinion of the court.

Since the decision made by this court in the case of Wade v. Scott, 7 Mo. 509, which was rendered in August, 1842, it has been considered as the settled law in this state that in a suit for the consideration money arising on the...