Singleton v. Fore

• Decision Date: 31 August 1842
• Parties: SINGLETON v. FORE.
• Court: Missouri Supreme Court

7 Mo. 515

SINGLETON

v.FORE.

Supreme Court of Missouri.

August Term, 1842.

ERROR TO THE CIRCUIT COURT OF LEWIS COUNTY.

U. WRIGHT, for Defendant

TOMPKINS, J.^a1

Fore, the defendant in error, brought his action of covenant against Singleton in the Circuit Court of Lewis county, charging that Singleton, by his certain bill of sale, dated 29th November, 1838, sealed, &c., in consideration of the sum of seven hundred dollars, did sell to the plaintiff three negroes, to wit, Charlotte, Naomia, and Lucy, and did warrant the said negroes to be sound and healthy, except that the said Charlotte had one eye out. The breach assigned is, that the said Charlotte and Lucy were not sound and healthy, with the exception aforesaid, but that Lucy was unsound and diseased, and in consequence thereof died, and that Charlotte was frost-bitten and thereby greatly injured. The pleas filed were non est factum, and covenants not broken. On which pleas issues were made up. The jury found for the plaintiff, and judgment was accordingly given. The evidence given in the cause shows that Lucy, a child aged three or four years, was sick when she was delivered, and that Charlotte was frost-bitten, and that was known to Fore, plaintiff below and defendant here. The Circuit Court, on motion of the plaintiff instructed the jury, that whether the plaintiff, Fore, knew of the unsoundness of either Charlotte or Lucy before the contract or execution of the bill of sale by the defendant, Singleton, is unimportant and cannot constitute a defense in this case. Also, that what the plaintiff gave the defendant for the slaves, has nothing to do with the question The defendant excepted to giving these instructions, and prayed counter instructions which were refused. But the Circuit Court, on the motion of the defendant, instructed the jury that unless they believed from the evidence, that the negro girl, Lucy, was diseased at the time of the sale of said girl, and that she died of said disease, without neglect, misconduct, or maltreatment of said plaintiff, or of any other person after said sale, they must find for the defendant.

It would indeed be perfectly useless for contracting parties to enter into written covenants, if oral testimony were to be admitted to prove that the written agreements were not intended to make the covenantor liable for every covenant set out in the writing obligatory. These negroes, it is proved, were sick at the time of the execution of the contract. Fore knew that Charlotte was frost-bitten, and that Lucy was otherwise diseased. This he might have known, and might also have believed that neither of them was seriously diseased, and that they would in a few days be in health.

To know the extent and danger of any disease of the body not uncommonly requires skill, and not unfrequently more attentive observation than even a skillful physician can bestow in a few hours. Therefore, the necessity of a warranty of soundness. Witnesses produced on each side have testified very differently as to the apparent health of the negro Lucy; and both sides might, it seems from the statements of the physician examined, have testified correctly. For he says, that the nature of her disease is such as to deceive by false appearances of health. The present case demonstrates clearly and forcibly the propriety of adhering strictly to the rule of excluding oral testimony, offered with a view to control the covenant of these parties. But we are not without authority. See Townsand v. Wild, 8 Mass....