Nerault's Heirs & Wife v. L'Enclos

8 Mart. (N.S.) 185

• Court: Supreme Court of Louisiana
• Decided: September 15, 1829
• Status: Published

Opinion

Martin, J.

delivered the opinion of the court. The defendant, the appellant, complains of the judgment of the district court, because interest was allowed before the inception of the suit.

He was sued as warrantor of a slave, sold to the plaintiffs, who were evicted, and the judgment is for the consideration of the sale, with interest from the period of the eviction.

The claim of the buyer against the vender in warranty is defined by the old code, (under which the sale of the slave took place,) 354, art. 54. It extends first, to the restitution of the price; 2dly, the fruits received by the buyer; 3dly, costs; and 4thly, damages, when they are suffered, besides the restitution of the price.

The appellee has, we think, incorrectly assumed that the warrantor owes interest, in the same manner as the buyer, who withholds the price of a thing which produces fruits. The buyer knows he owes the fruits. The warrantor must be put in mora: he has no means of knowing the eviction, till the buyer apprises him of it by a demand; and that demand is of a sum of money, on which interest is due only, as in the case of an ordinary debt. In the present case, it does not appear, that any notice of the eviction was given to the appellant, till about thirteen years after it happened.

It is therefore ordered, adjudged and decreed, that the judgment of the district court he annulled, avoided and reversed, and that the appellee recover of the appellant the sum of 500 dollars, with interest at five per cent. from the inception of this suit until paid, with costs of suit in the district court, and that he pay the costs in this.

Bowen for the plaintiffs, Curry for the defendant.