Patterson v. Kirkland

34 Miss. 423

• Court: Mississippi Supreme Court
• Decided: October 15, 1857
• Status: Published

Opinion

Fishek, J.,

delivered the opinion of the court.

This was an action brought by the -plaintiff below-in the Circuit Court of Simpson county, upon a breach of a warranty executed by the defendant, by which he warranted certain slaves, sold to the plaintiff, to be sound in body and mind. There is also a count in the complaint, that the defendant' falsely and fraudulently represented, and falsely warranted the soundness of said slaves. The complaint was demurred to, on the ground that the causes of action were such as could not be joined in the same action. The object of the suit was to recover damages, resulting from the same transaction. The slaves being unsound, as alleged in both counts, at the time of the sale, the warranty of soundness was, of course, false, although the defendant may have been ignorant of the fact. The counts being such as could be united in the same complaint, the court committed no error in overruling the demurrer.

It is next alleged that the court erred in refusing to give the defendant’s third instruction, which is as follows: “ That the defendant, if not called upon by Kirkland to do so, was not bound to make any representations whatever as to the soundness or unsoundness of the negroes at the time of the trade; and, though the defendant may have known that the negroes were unsound in body or mind, yet the defendant was not bound to make any representations about their unsoundness, if unsound; and the concealment of it will not justify the jury in finding a verdict for the plaintiff.” We think the court committed no error in refusing this instruction. It is objectionable, both as an abstract rule of law, and as not being applicable to the case. If ,the defendant made representations as to soundness, he was bound to state all he knew on this subject. Besides, in case of a latent defect, where the sale is for a full price, the seller is bound to disclose such defect, if known to him, especially when the disclosure may so far influence the purchaser as to induce him to decline the purchase. The defects here were latent, and, if known to the vendor, he was bound to disclose them.

Judgment affirmed.