Stone v. Watson , 37 Ala. 279 ( 1861 )

A. J. WALKER, C. J.

In the original -and amended complaint, adding additional counts, there were nine counts. The record informs us,>that the defendants’ demurrer to the first two counts was sustained, and that it was overruled as to the remaining .counts. From this we understand, that the demurrer was.sustained as to the single count in the original complaint, and as .to the first count in the amended complaint, and that it was overruled as to the last seven counts in the amended complaint.

[2.] Two reasons are urged, why The court below erred in so overruling the demurrer -to the seven counts. The first reason is, thaMhe averment of The unsoundness of the slave is the statement of a conclusion, and that therefore it was necessary for the pleader to have-alleged in what the unsoundness consisted. Prom this -argument we must dissent ; for we regard unsoundness as a fact, which ma.y appropriately be averred in pleading.

[3.] The second reason urged iim support of the demurrer, is, that the counts are misjoined, because some of them require a special breach, while others do not. — Code, § 2235. This argument, we think, is also unsound, for we do not regard either of the counts-as requiring a special breach, in the sense in which that phrase is used in the above cited section of the Code..

[4.] In ascertaining the damages resulting from the breach of warranty of soundness, the proper inquiry, of course, was as to the value of the slave at the time of the sale. But it was permissible to prove what her value was a few months afterwards, as reflecting light upon the question of her value at the time of the sale.— Ward v. Reynolds, 32 Ala. 384. There was, therefore, no error in overruling the first three objections to the interrogatories propounded by the plaintiff to Dr. B. C. Jones.

[5.] The defendants objected to an interrogatory to the witness Jones, inquiring what would have been the value of the slave, if she had been sound and “a good, No. 1 seamstress.” It was certainly proper to prove the value if the slave with her qualities upon the hypothesis of her sbundness.. The bill of sale made by the defendants to the plaintiff represented the slave to .'be a seamstress, but did njjpt specify, that she,- was a seamstress of quality Imoion as No. 1. We think it probable, that the fact that the negro’s quality as a seamstress was made the subject of a special and formal • description in the bill of sale, authorized an argument to the jury that she possessed some eminence of skill as a seamstress, and might be classed as No. 1. If there was any tendency of proof to show that she was a “No. 1 seamstress,” it was permissible to inquire as to her value upon that supposition.. We decide, though with some doubt, that there was in .the statement of the bill of sale such tendency of,proof, and that therefore there was no error in overruling the fourth objection to the plaintiff’s interrogatories to Jones.

[6.] The evidence ©f Thomason, as to the value of the slave according to the qualities which she was reputed to possess, was manifestly inadmissible. The legitimate inquiry was, her value upon the -supposition of the qualities which she did possessed note.of those she was reputed to possess.

[7.] The inquiries--of the witness Jones, as to the person by whom, and at whose request, he was called to visit the slave in her illness, and as whose property, he visited her, were calculated to elicit information of the facts necessary to sustain the plaintiff’s claim for damages on account of a medical bill' contracted in treating her disease. The objection to that inquiry was, therefore, properly overruled.

The court erred, however, in admitting in evidence the account of Dr. B. C. Jones, there being no evidence of its correctness. The account could, upon no principle of law,, be admissible, until it was proved that the services were rendered as .charged, and that the charges were correct. Besides, the account could not be evidence, unless it was contracted for the treatment of a disease which the slave ljiad at the time of the sale.

[8.] Evidence that the slave looked sick, conduced to establish a fact, which was one of -the material matters inj issue. The appearance of a slave is certainly a fact, and/ [not a conclusion, and-is susceptible of proof by one not an] expert, who has seen the slave.

£9.] The declaration o.f .the slave, .as to the present existence of a pain in her breast, was .clearly admissible; and the point has been repeatedly so adjudged by-this court.— Wilkinson v. Moseley, 30 Ala. 562; Barker v. Coleman, 35 Ala. 221.

[10f| At least under some,, of the counts in the complaint, evidence as to whether jibe’.burning of the slave was caused b.y the plaintiff’s negligence, was admissible. 1 Parsons on Con. 445. To this question, the fact that the slave was, by .a rule of the house -in which she was kept by plaintiff, not allowed to use the lamp, in using which she was burnt, was clearlypertinent, and there was no error in admitting that fact in evidence. And so, also, in the same point of view, -the -fact that the plaintiff consulted a physician, as to the prudence and safety of sending the slave to Talladega; and that Dr. Jones, being a physician who had treated her case, advised him that she might be safely sent, would be competent evidence upon the question, whether the defendant was guilty of .any negligence in sending the slave to Talladega. The unsworn opinion given by Dr. Jones would not be evidence that it was safe to so send the slave-; but the fact that be was-consulted, and so advised, has a direct bearing upon the question, whether the plaintiff acted carelessly and incautiously.

We deem it proper to observe, in reference to the 6th count, which avers a delivery of the slave to the defendants, and an agreement on their part to pay, in consideration thereof, the sum of thirteen hundred dollars, that we regard it as showing a rescission by consent of both parties, and that we must not be understood as affirming that it is good as a count for a rescission against the wishes, and without the consent of the defendants.

Reversed and remanded.

Stone, J., not sitting.