Stewart & Stewart v. Dugin

• Court: United States State Supreme Court of Missouri
• Writing for the Court: MCGIRK
• Citation: 4 Mo. 245
• Decision Date: 31 October 1835
• Parties: STEWART & STEWART v. DUGIN.

4 Mo. 245

STEWART & STEWART
v.
DUGIN.

Supreme Court of Missouri.

October Term, 1835.

APPEAL FROM THE CIRCUIT COURT OF FRANKLIN COUNTY.

MCGIRK, J.

The appellants brought a bill in chancery in which they state, that in October, 1834, Dugin sold to W. Stewart, a negro boy, a slave, named Bill, for the sum of five hundred dollars, and that William Stewart, the purchaser, gave his bond for the payment of the money, with W. R. Stewart his security; that Dugin has brought suit on the bond and recovered judgment, and is about to enforce the payment by execution. The bill states, and charges that Dugin at and before the sale of the slave to Stewart, represented him to be healthy and sound, which induced him to buy. The bill then charges that when Stewart bought the slave he was unhealthy and unsound, and that the slave so continued unwell of the disease aforesaid, till some time in February, 1835, when he died of the disease. The bill farther states that shortly after Stewart discovered the negro was unsound he offered to return him to Dugin who refused to receive him;--the bill farther charges that the negro was constitutionally unsound from his boyhood, was diseased in his lungs, and subject to fits, and in fact was worth nothing when sold by Dugin, all which Dugin knew, and concealed from Stewart. The bill prays a discovery, and that the judgment may be perpetually enjoined. The Circuit Court granted an injunction. Dugin, the defendant, put in his answer: he admits that he sold the negro in question to Stewart for the sum mentioned, and that he is prosecuting suits on the bonds, &c. He denies that at the purchase and sale of the negro he represented him to be either healthy or sound, and he declares no inquiry was made by Stewart on that subject--but that Stewart came to him and solicited the purchase. He alleges also, that Stewart lived in the neighborhood and had known the negro for a long time. The answer also denies that Stewart ever offered to return the negro to him--except that some time in the month of January,

[4 Mo. 246]

1835, Stewart came to Dugin's house but did not bring the slave with him; and he denies that Stewart did then, or at any other time, tender the slave to him, he says the slave came to his house by himself, in the night of the day Stewart came to his house as aforesaid. The answer denies that the respondent ever warranted the slave to be sound. The answer admits that at the house of Inge, Stewart requested him, the respondent, to take the slave and take care of him in his sickness, which he refused to do. The answer admits the negro is dead, but insists that he did not die of any disease he had on him at the time the respondent sold him, but says he was then sound, and denies all misrepresentation, says the negro had no constitutional disease when sold, &c.

The complainants file a general replication. The cause was heard on the bill, answer and evidence, and the court decreed that as to one hundred dollars, the injunction is made perpetual, and as to the other four hundred it is dissolved; the court also decreed the costs against Stewarts. The substance of the evidence given at the trial on the part of the Stewarts appears to be: that, one...