Thompson v. Botts

• Decision Date: 31 July 1844
• Citation: 8 Mo. 710
• Parties: THOMPSON v. BOTTS.
• Court: Missouri Supreme Court

8 Mo. 710

THOMPSON

v.BOTTS.

Supreme Court of Missouri.

July Term, 1844.

APPEAL FROM HOWARD CIRCUIT COURT.

LEONARD, for Appellant. 1. The first and second instructions given to the jury, at the instance of the plaintiff are erroneous. 1st. They both assume as true the fact of the warranty (a matter denied by the plea), and direct the jury to find for the plaintiff, if the other material fact in the issue (the unsoundness) be proved. 2nd. The second instruction prescribes an improper measure of damages. Although the warranty extends to both the mother and the child, the present suit is for the unsoundness of the mother only, and of course the true measure of damages here is the difference between the value of the mother sound, and her value diseased, as she was alleged to be, and not the difference between the value of the negroes sound (two instead of one), and their value diseased, as they are alleged to be. 2. A defect visible and known to the purchaser is not within the general words of a warranty; and therefore the court ought to have directed the jury, that the swelling in the neck, if visible and known to the plaintiff at the time of his purchase, was not an unsoundness within the warranty: what both parties knew well to exist, they did not intend to embrace within a warranty declaring that it did not exist. The mere swelling, therefore, was not per se an unsoundness within the warranty. Schuyler v. Russ, 2 Caine's R. 202; Wade v. Scott, 7 Mo. R. 511; 3 Phillips' Ev. 1392, 1402.

CLARK and HERNDON, for Appellee. 1. The warranty in this case being in writing, the whole contract between the parties is evidenced by it, and no parol evidence of the terms of the contract or understanding of the parties, different from the terms of the writing, ought to be allowed. There would be little or no use in taking a written warranty, if exceptions not in the writing could be proved by parol. Upon this point, see 1 Bibb, 583; Wade v. Scott, 7 Mo. R. 509; Singleton v. Fore, ibid. 515; 1 Cowen, 251; Chitty on Contracts, 25. The principle in the instruction asked by the defendant, and refused by the Court, is directly opposed to the principle of the decisions here referred to 2 The evidence given in relation to the diseased appearance of the children was proper, as the evidence of medical gentlemen proves, that such disease affects and makes its appearance in the offspring; the scrofulous appearance of the children was therefore a circumstance, with others, showing that the mother was afflicted with the disease, the same being inherent. 3. The court properly refused to permit the defendant to add an additional reason for a new trial, after the expiration of four days, and properly refused the new trial, upon the reasons filed, but even if the court ought to permit additional valid reasons filed after the four days, the reasons asked to be added in this case could have availed nothing if filed See 5 Mo. R. 248.

NAPTON, J.

This was an action of assumpsit brought by the appellee for a breach of warranty in the sale of a negro woman and child The breach assigned, was the unsoundness of the woman at the time of the sale The bill of sale warranted the negroes “sound and healthy in body and mind, and slaves for life.” The plea was non-assumpsit, and the verdict was for the plaintiff

On the trial, it appeared, that the negro woman, at the time of the sale, had a swelling on the side of her neck, about the size of a pea, which was shown to the purchaser (Botts), with assurances from Thompson (the defendant below), that it “would not hurt her and if it did, he would make it good” That four or five months after the purchase, the plaintiff (below) brought the negroes back to the defendant, and desired him to take them back, which defendant declined....