Worthy v. Patterson , 20 Ala. 172 ( 1852 )

DARCAN, C. J.

"We can perceive no reason why the deposition of the witness should have been rejected. The proof was that he was infirm and. generally unable to leave home at the time the deposition was taken, and it was taken twelve days only before the trial. The proof raised at least a prima, facie presumption that he was unable to attend court, and in the absence of any proof to the contrary, showing the ability of the witness to attend, warranted the admission of his deposition. The length of time between the taking of his deposition and the trial was too short, to enable the court to conclude that the witness had recovered sufficiently to attend and give evidence. At all events, as the court did not draw the inference, that the witness was able to attend and give testimony, we cannot say there was error in not drawing such an inference.

The court, however, erred in refusing the charge requested, as well as in the charge given. If a slave is warranted sound, but is unsound at the time of the warranty, the purchaser, although he has not offered to return the slave, may, nevertheless, recover of his warrantor, to the extent that the slave is impaired in value, by the unsoundness existing at the time of the purchase. This rule has been so often announced by this court, that it must be considered' as the settled law. See Hogan v. Thorington, 8 Porter, 420; White v. Kornegay, 10 Ala. 255; Marshall v. Grant, 15 Ala. 685.

If, therefore, the slave was of any value at the time of the purchase, this actual value must be deducted from the amount the slave would have been worth, had he not labored under disease at the time of the warranty. To hold otherwise, would be to allow the purchaser damages to a greater extent than he had suffered injury; and all courts hold, that the damages for a breach of warranty should only be commensurate with the injury.

If the slave was of no value at all, then the measure of damages would be, what his value would have been had he been sound. But if he was of any value, and the plaintiff saw fit to retain him, then the actual value of the slave must be deducted from the amount the slave would have been worth, if he had been sound. This rule compensates the plaintiff for his actual injury, and this is all to which he is entitled.

Let the judgment be reversed, and the cause remanded.