Saulet v. Loiseau

4 Mart. 512

• Court: Supreme Court of Louisiana
• Decided: April 15, 1819
• Status: Published

Opinion

Dubigny, J.

delivered the opinion of the court. The defendant and appellant, Francis Loiseau, sold to the appellee,Balthazar Saulet, a negro slave, named Jacob, under this condition : i! It is agreed and covenanted that, whereas the said slave is now in bad health, this sale shall be rescinded, in cále he shall not be perfectly recovered in one month from this date, and the said Loisead shall take back said slave and re-«ay the price thereof® to said B. Saulet.” Both 1^1 parties then went to one George, a free negro man, who undertakes cures, and left the slave under his care at their joint expense. Thirty days after, the slave died ; the object of the present suit is to recover the purchase money

George was sworn as a witness, and established the facts on which the appellee relies. His testimony was not objected to ; but after the verdict, the defendant made a motion for a new trial, offering to prove that George had forsworn himself, on one point, and was unworthy of belief. Without examining whether this was a case, where new a trial could be granted for the purpose of discrediting a witness, we, are satisfied that the affidavit, on which it was prayed for, was insufficient, and that the court below was right in refusing it.

The testimony of George, who swore that Jacob was very sick for several days previous to his death, has been attempted to be shaken by that of two witnesses, one of whom heard the plaintiff tell the defendant, two days before Jacob’s death, that the sick negro was going on well ; and the other, who ivas present on the same occasion, recollects that the negro was mentioned by the name of Jacob, and that the appellee said he was in good health, drinking and eating well. The appellee’s opinion of the situation ofttliat slave is, however, very immaterial, for it is in evidence m # that he never went to see him, and spoke of course from report.

The counsel for the appellant has put a construction upon the clause above quoted, which cannot hear him out. He thinks, that if the slave was not cured at the end of one month, it was the duty of the appellee to return or offer to return him to the appellant at that very time, and that in defect of making such tender, his recourse under the reservation was gone.—We see nothing in the reservation which warrants such an interpretation. The stipulation is “that if the slave shall not be properly recovered in one month from the date, the sale shall be rescinded, &c.— The plaintiff proves that he did not recover at all, but died of his complaint. That is proving more than he was bound to do to support his action.

It is, therefore ordered, adjudged'and decreed, that the judgment of the parish court be affirmed with costs.