By the Court.
McDonald, J.
delivering the'opinion.
This cause is brought to this Court on exceptions to sundry rulings of the Court below during the progress of the trial, and also upon exceptions to the charge of the presiding Judge to the jury, and to his refusal to charge thejury as requested by the counsel for plaintiff in error.
The counsel for the plaintiff in error insists upon five of the errors assigned in the record, which are as follows:
1st. “That the Court erred in permitting the caseto here-opened, after it had been closed the evening before, to permit the counsel for defendants in error to introduce a juror, whose testimony had been communicated to defendants in error or their counsel, between the adjournment and the meeting of the Court the next morning.”
2d. “ That the Court overruled the motion made by counsel for plaintiff in error to withdraw the case from the jury, after the testimony of the juror, Elisha Smith, showing he was not an impartial juror.”
3d. “ That the Court overruled objections made by counsel for plaintiff in error, to certain parts of the testimony of Isaac Averett, J ames C. Hudson and Elisha Smith, the juror, in relation to the sayings and acts of the plaintiff in error.”
4th. “That the Court charged thejury that the admissions of plaintiff in error, as they were given in evidence, were to be considered by them, in deciding whether the negro girl was sound or unsound. And although they should find the covenant to be broken, if they should find that the slave, at the time of the sale, was worth the price for which she was sold, the plaintiff in error has sustained no damages/
[711]*7115th. “ That the Court refused to charge the five points at law as requested by counsel for plaintiff in error.”
[1.] The Court committed no error in permitting the case to be re-opened, to allow the defendants in error to introduce additional evidence, after the case had been closed. The Court sits to administer the law and do justice between parties litigant, and it is its duty to admit evidence material to the issue at any time before the argument before the jury is closed, provided the evidence was not within the knowledge of the party offering it, until after the case was closed. This Court has held that after a cause had been partially argued before the jury, the presiding Judge ought to have heard the testimony of a witness, who was in Court during the introduction of the evidence; but who had absented himself under the belief that his evidence was not needed.
[2.] That a juror summoned and sworn was discovered, after he was sworn, to be incompetent, from partiality, bias or prejudice, to try the cause, is no ground for putting off the trial Upon, a proper showing, another juror might have been substituted.
[3.] The ruling of the Court admitting the evidence of Averett, Hudson and Smith in relation to the sayings and acts of the plaintiff in error, is sustained by us. The evidence objected to, relates to the sayings of the plaintiff in error as to his satisfaction with the negro and the high estimate he placed upon her before it was ascertained that the deformed appearance of the eye was the effect of an existing disease in that organ. There were two matters of enquiry before the jury who tried the cause. The first was, as to the soundness of the negro at the time of the warranty The second was, if she was unsound at that time, to what extent was the plaintiff in error endamaged by reason of her unsoundness. As long as the plaintiff in error regarded the appearance of the eye as a mere deformity, his sayings as to the high value which he placed upon her are not to be [712]*712considered as evidence of her soundness, for he purchased her as deformed, but also as sound. The sayings of the plaintiff in error as to her value down to the development of the disease in the eye, was certainly admissible to satisfy the jury that he had not been so much endamaged as if the negro had been wholly worthless. That the plaintiff in error did not return her nor offer to return her, neither before nor after the development of the disease of the eye, was entirely admissible in evidence before the jury.. That he did not propose to return her was evidence that h^ was not willing to rescind the contract, but that he would be content to be allowed in a settlement whatever damage he might be entitled to for a breach of the warranty. It is not necessary^ in every case, for the purchaser to propose to return the property purchased, to entitle him to an allowance of the entire consideration agreed to be paid, under an act authorizing a plea of total failure of consideration. In this trading country, where'negroes, horses and mules are carried from one State to another, and sold at the residence of the purchaser, in a State other than that of the seller’s residence, it would be extremely difficult and expensive for him to offer to return the property; but when the parties live at a convenient distance from each other, or the purchaser has an. opportunity to return the property purchased,and he does not make such offer, his failure to do so maybe submitted to the jury as evidenpe that there was either no breach of contract, or if there was, that he was willing to hold on to his contract, and recover, or be allowed the amount that its damaged or diseased condition reduced its value at the time of the sale.
By taking the whole evidence together, there was no indefiniteness as to which negro the evidence applied. The evidence shows that the plaintiff in error had purchased of defendants two negroes, and that he had paid for one* of them; so that the price for one only is in dispute. Besides, the bill of sale of this negro and the note sued on, have the same [713]*713date, and the consideration expressed in the bill of sale, is the precise amount of the note.
[4.] The fourth ground of error relied on by the plaintiff in error in this Court,, is assigned on the charge of the Court. The charge excepted to was, that, although the jury should find the covenant to be brokén, if they should find, at the time of the sale, the slave, in her unsound condition, was worth the price for which she was sold, the plaintiff in error has sustained no damages. This charge is erroneous. It authorizes the jury to remodel the contract of the parties without their consent. Every man, in making a contract, acts upon his own judgment as to the value of the property he purchases. The plaintiff in error purchased the negro, which was the consideration of the note sued on as a sound negro, and the price stipulated between the parties was her agreed value in a sound condition. She was warranted to be sound. It is not to be supposed that the purchaser would have given as much for her in her unsound state, as if she had been sound. The contrary is the legal and common sense presumption. The charge authorizes the jury to say that, admitting the negro to have been unsound at the time of the sale and warranty, and that that unsoundness, according to the evidence, impaired her value, yet the purchaser ought to have given the price he paid for her, as, in our judgment, she was worth that sum in her diseased condition.
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By the Court.
McDonald, J.
delivering the'opinion.
This cause is brought to this Court on exceptions to sundry rulings of the Court below during the progress of the trial, and also upon exceptions to the charge of the presiding Judge to the jury, and to his refusal to charge thejury as requested by the counsel for plaintiff in error.
The counsel for the plaintiff in error insists upon five of the errors assigned in the record, which are as follows:
1st. “That the Court erred in permitting the caseto here-opened, after it had been closed the evening before, to permit the counsel for defendants in error to introduce a juror, whose testimony had been communicated to defendants in error or their counsel, between the adjournment and the meeting of the Court the next morning.”
2d. “ That the Court overruled the motion made by counsel for plaintiff in error to withdraw the case from the jury, after the testimony of the juror, Elisha Smith, showing he was not an impartial juror.”
3d. “ That the Court overruled objections made by counsel for plaintiff in error, to certain parts of the testimony of Isaac Averett, J ames C. Hudson and Elisha Smith, the juror, in relation to the sayings and acts of the plaintiff in error.”
4th. “That the Court charged thejury that the admissions of plaintiff in error, as they were given in evidence, were to be considered by them, in deciding whether the negro girl was sound or unsound. And although they should find the covenant to be broken, if they should find that the slave, at the time of the sale, was worth the price for which she was sold, the plaintiff in error has sustained no damages/
[711]*7115th. “ That the Court refused to charge the five points at law as requested by counsel for plaintiff in error.”
[1.] The Court committed no error in permitting the case to be re-opened, to allow the defendants in error to introduce additional evidence, after the case had been closed. The Court sits to administer the law and do justice between parties litigant, and it is its duty to admit evidence material to the issue at any time before the argument before the jury is closed, provided the evidence was not within the knowledge of the party offering it, until after the case was closed. This Court has held that after a cause had been partially argued before the jury, the presiding Judge ought to have heard the testimony of a witness, who was in Court during the introduction of the evidence; but who had absented himself under the belief that his evidence was not needed.
[2.] That a juror summoned and sworn was discovered, after he was sworn, to be incompetent, from partiality, bias or prejudice, to try the cause, is no ground for putting off the trial Upon, a proper showing, another juror might have been substituted.
[3.] The ruling of the Court admitting the evidence of Averett, Hudson and Smith in relation to the sayings and acts of the plaintiff in error, is sustained by us. The evidence objected to, relates to the sayings of the plaintiff in error as to his satisfaction with the negro and the high estimate he placed upon her before it was ascertained that the deformed appearance of the eye was the effect of an existing disease in that organ. There were two matters of enquiry before the jury who tried the cause. The first was, as to the soundness of the negro at the time of the warranty The second was, if she was unsound at that time, to what extent was the plaintiff in error endamaged by reason of her unsoundness. As long as the plaintiff in error regarded the appearance of the eye as a mere deformity, his sayings as to the high value which he placed upon her are not to be [712]*712considered as evidence of her soundness, for he purchased her as deformed, but also as sound. The sayings of the plaintiff in error as to her value down to the development of the disease in the eye, was certainly admissible to satisfy the jury that he had not been so much endamaged as if the negro had been wholly worthless. That the plaintiff in error did not return her nor offer to return her, neither before nor after the development of the disease of the eye, was entirely admissible in evidence before the jury.. That he did not propose to return her was evidence that h^ was not willing to rescind the contract, but that he would be content to be allowed in a settlement whatever damage he might be entitled to for a breach of the warranty. It is not necessary^ in every case, for the purchaser to propose to return the property purchased, to entitle him to an allowance of the entire consideration agreed to be paid, under an act authorizing a plea of total failure of consideration. In this trading country, where'negroes, horses and mules are carried from one State to another, and sold at the residence of the purchaser, in a State other than that of the seller’s residence, it would be extremely difficult and expensive for him to offer to return the property; but when the parties live at a convenient distance from each other, or the purchaser has an. opportunity to return the property purchased,and he does not make such offer, his failure to do so maybe submitted to the jury as evidenpe that there was either no breach of contract, or if there was, that he was willing to hold on to his contract, and recover, or be allowed the amount that its damaged or diseased condition reduced its value at the time of the sale.
By taking the whole evidence together, there was no indefiniteness as to which negro the evidence applied. The evidence shows that the plaintiff in error had purchased of defendants two negroes, and that he had paid for one* of them; so that the price for one only is in dispute. Besides, the bill of sale of this negro and the note sued on, have the same [713]*713date, and the consideration expressed in the bill of sale, is the precise amount of the note.
[4.] The fourth ground of error relied on by the plaintiff in error in this Court,, is assigned on the charge of the Court. The charge excepted to was, that, although the jury should find the covenant to be brokén, if they should find, at the time of the sale, the slave, in her unsound condition, was worth the price for which she was sold, the plaintiff in error has sustained no damages. This charge is erroneous. It authorizes the jury to remodel the contract of the parties without their consent. Every man, in making a contract, acts upon his own judgment as to the value of the property he purchases. The plaintiff in error purchased the negro, which was the consideration of the note sued on as a sound negro, and the price stipulated between the parties was her agreed value in a sound condition. She was warranted to be sound. It is not to be supposed that the purchaser would have given as much for her in her unsound state, as if she had been sound. The contrary is the legal and common sense presumption. The charge authorizes the jury to say that, admitting the negro to have been unsound at the time of the sale and warranty, and that that unsoundness, according to the evidence, impaired her value, yet the purchaser ought to have given the price he paid for her, as, in our judgment, she was worth that sum in her diseased condition. If a man purchases land at so much per acre, and gives his note for the purchase money, taking a warranty that there are so many acres, and it turns'out, upon survey, that there is a deficiency in the number of acres, it is no reply to a plea of this deficiency to an action upon the note, that atthe time.of the sale, the land conveyed, notwithstanding the deficiency in the quantity and the breach of covenant, was worth the sum agreed to be paid for the whole.
The enquiry of the jury in this case was a simple one. How much was the negro girl less valuable at the time of [714]*714the sale, by reason of the latent disease in the eye, than if she had been sound. This they might easily have determined by considering the evidence as to the effect of the disease upon her after it was developed. The difference between her value sound, without reference to the price to be paid for her, and her value, diseased as she was, being ascertained, that difference was the damage to which the plaintiff in error was entitled, and should have been deducted from the amount of the note at the time it was given. The plaintiffs in the Court below were entitled to a verdict for the balance with interest thereon. If the jury find a breach of covenant, they must look to the whole evidence, and from that come to the best conclusion they can as to the damage resulting to the injured party therefrom, and be it much or little, allow it to him.
The counsel for the plaintiff in error made, of the presi" ding Judge in the Court below, five requests to charge the jury, which are set forth in the statement of the case prefixed to this opinion.
[5.] The first request ought to have been given in charge to the jury. It is true, that the Court had given it in charge nearly substantially, yet being refused when a direct application was made, might have led the jury to believe that such request was not law. I am but little disposed to countenance the practice of embracing in requests of the Court to charge the jury, matters which have already been given in charge. From what I have already said it will be seen that, in our judgment, the second and third requests ought not to have been given in charge.
[6.] The fourth request to charge was properly refused by the Court. Physicians are regarded as experts as to diseases, but not as to the value of negroes, sound or unsound. In regard to value, their- opinions, as physicians, are not entitled to higher consideration than that of other witnesses; and perhaps not to so much.
[715]*715There is no evidence in the record to warrant the fifth request. It does not appear that the plaintiff in error had ever paid any part of the purchase money of the girl Mary. Hence the Court committed no error in refusing to give it in charge to the jury.
Judgment reversed.