Painpaie v. Martin , 14 La. 59 ( 1839 )

Martin, J.,

delivered the opinion of the court.

The plaintiff having purchased from the defendant a slave, for the price of twelve hundred dollars, one-half of which he paid in cash, and gave his note for the balance, payable seven months after date, brought the present action for the rescission of the sale, on account of redhibitory defects and maladies. There was a verdict in his favor for six hundred dollars, or the return of his note. Judgment was rendered for the sum of six hundred dollars, to be satisfied by the return of the note. The defendant’s warrantor moved for a new trial, which was overruled.

The plaintiff appealed, after an unsuccessful attempt to have the judgment amended according to the verdict.

The plaintiff’s counsel has contended, that it is evident that the verdict of the jury was inaccurately recorded. The disjunctive or, being used, instead of the copulative and. This being the case, it was the duty of the plaintiff’s counsel to have assented to a new trial, which would have afforded the best opportunity of correcting the error, instead of asking what was already done, that there should be a judgment according to the verdict.

Our attention has not been drawn to any other part of the record, and the verdict has not been complained of in this court by the defendant.

On a close examination of this case, it has appeared to us, that it is our duty to relieve the appellant. It is evident that he is entitled to recover the whole price of the slave, one-half of which only has been awarded him.

It is, therefore, ordered, a'djudged and decreed, that the judgment of the District Court be annulled, avoided and reversed, so far as it concerns the plaintiff and defendant; and proceeding to give the judgment to which the plaintiff was entitled in the court below : it is ordered, adjudged and decreed, that the sale of the slave Rufus be rescinded; and that the plaintiff recover from the defendant the sum of twelve hundred dollars ; six hundred dollars of which may be discharged by delivering to the plaintiff, or filing in the clerk’s office of the District Court for him, the note mentioned in the petition, with costs in both courts.