Edwards v. Martin's Heirs ( 1841 )

Morphy, J.

delivered the opinion of the court.

The mother of the plaintiffs, Polly Edwards, a free born woman of color, was sold as a slave for life in 1802, by Joseph Andrus to André Martin, for the sum of $625. She was then about nineteen years of age, and had no children. In 1829 she claimed and recovered her freedom against one Joseph Foreman, to whom she had been conveyed by André Martin. In that suit Andrus was decreed, as warrantor, to return to the heirs of Martin the money paid for the pretended slave, together with the costs ; the question of damages having been expressly reserved in case the children of this woman; born since the purchase, should thereafter recover their freedom. The present suit having been brought by them to be declared free, the ven(jor 0f their mother was agairi cited in warranty by the defendant. The cause was tried before a jury who gave their verdict for the plaintiffs; and at the same time assessed the damages due to the defendants at $4800. Judgment having been entered up in conformity with this finding of the jury, the exeoutors of Andrus appealed.

The only question in this case is as to the extent of the damages due to the heirs of the vendee under the clause of warranty. The sale having taken place in 1802, the rights and obligations of the parties to it must be settled according to the laws in force at that time. Under the laws of Spain, the vendor was'bound in case of eviction to reimburse the price of the thing sold, and to pay all the losses and damages sustained by the vendee “ con todos los demos é menoscabos que le vi-nieron por esta razón Part. 5, T. 5, L. 32. But to what did these damages extend? Were they without any limit whatever, even with regard to a vendor in good faith ? And did they embrace the increased value of the thing sold, however enormous, and from whatever cause it arose ? On these questions, the Spanish writers we have been able to consult, throw little light; but Gregorio Lopez, in his notes on the above law, points to the Roman Digest, as the source from which it had been drawn, and both the counsel have also referred to it. On the part of the appellant, it is contended that the children of slaves were not considered as fruits by the Roman law, and that a vendor was not responsible in warranty for the eviction of the child of a female slave sold while she was pregnant; Dig. Lib. 22, T. 1, L. 28; and Dig. Lib. 21, T. 2, L. 42, The latter law reads thus : “ Si prssgnans ancilla vendita et tradita sit, evicto partu, venditor non potest de evictio-ne con-veniri, qua partus venditus non esta fortiori, it is said, a vendor should not be responsible for children not conceived until long after the sale. On the other hand, the counsel for the appellee relies on the 8th law in the same book and title, as establishing a different doctrine : “ Venditor hominis emp-tori prasstare debet, quanti ejus interest hominem venditoris fuisse ; quare sive partus ancillse, sive hereditas quam servus jussu emptoris a dierit, evicta fuerit, agi exempto potest; et sicut obligatus est venditor ut prsestet licere habere hominem quero vendidit, ita ea quoque qute per eum adquirí potuerunt, prestare debet emptori ut habeat.” The apparent contradiction between these two texts is owing entirely to the difference of the actions alluded to in them. The Roman law gave to the purchaser two remedies, the actio ex empto, and the actio de evictione. The latter which was used to enforce the stipulatio duplse, was subject to strict and technical rules. It could not be resorted to unless the purchaser had been evicted of the subject matter of the sale itself,while in all cases the actio exempto could be brought to recover any damages sustained praetor pretium, whether the eviction was of the thing sold itself, or of any thing proceeding from it: vide Pothier’s Pandects, vol. 8, p. 134; Dumoulin, Tract, de eo quod interest, No. 148. The general rule on the subject of warranty in the Roman Digest, is to be found in the 60th law of the same book and ° title. It provides that the purchaser must be indemnified to the extent of the interest he had in not being evicted, and this is the first law referred to by Gregorio Lopez, in his note on But this rule was subject in the Roman the word menoscabos. law to the limitation laid down in laws 43 and 44 of T. 1 Book , 19, which are also cited by the learned commentator. Paulus ,, \ . . ’ . ,. says, “ JrJane, si m tantum pretium excedisse proponas, ut non sit cogitatum á venditore de tanta summa ; veluti si ponas agitatorem postea factum, vel pantomimum, evictum esse eum qui mínimo veniit pretio, iniquum videtur in magnam quam stitatem obligari venditorem“ cum et forte idem mediocrium facultatum sit, et non ultra duplum periculum subiré eum .oportet.” Dumoulin, while he approves of this equitable restriction of the warranty in relation to the expenses of the purchaser in the law just quoted, remarks that it should with more reason be adopted with regard to any great or accidental increase of the thing sold. “ Igitur multo magis idem dicendum de augmento vel accessione casuali, quae venit sine sumpta empjorjSj u|. faecunditas et partus ancill© emptae, hereditas Servo empto relicta et per earn acquisita idem tract. No. 138. 1 A A . T To put an end to all doubts and disputes on this subject, Justinian in his law de sentenliis quae pro eo quod interest proferun-ordered that in all cases where the agreement had for its 0j)ject a certain quantity or amount as in sales, leases, &c., the damages to be assessed should not exceed the value of the „ _ aw t i subject matter of the contract: Code, Book 7, T. 47, L. 1; ^ ven(jor jn g00¿ faíth was alone entitled to the benefit of restriction. From the above references of Gregorio Lopez, We cannot but believe that the principle of warranty was adopted and applied in Spain with the just and reasonable limitation which attached to it in the Roman jurisprudence. In commenting on this constitution of Justinian, Pothier says, that it rests upon the principle that the objections which Sow from contracts can result only from the will and consent of the parties ; that a debtor by engaging to pay damages for the nonperformance of this obligation is presumed to have intended to be bound only for the highest damages that could be within his contemplation at the time of the contract, so that when they are such that they could not have been thought of or foreseen, they must be reduced to a sum which it was reasonable to expect they might reach; Pothier’s Oblig. No. 164; Dumoulin Nos. 60, 137, 138, 139, and 148.

\aw’ ln laylntj down a general rule on the subject of warranty, provides, that musttieindem-The Roman resi: had in not being evicted: on this there are some restrictions. In reo-ard to agreements^ia-object certain quantity or amount, as in sales,lcases^&c^ cee'd the 'value of tiie subject .contract. A debtor, engaging to pay damages for the non-perform-anee of his obligation, is pre-suméd to intend only the highest damages,within the contemplation of the parties at the time of the contract; and if they are such as could not have been foreseen, they must be reduced to a reasonable sum.

In the present case, it is unreasonable to suppose that An-drus, when in 1802, he sold Polly Edwards for $825, and gave his warranty, contemplated the payment to his vendee, in case of eviction, of a sum of $4800, as damages, over and above the price he shouldbe decreed to reimburse. The circumstance of this woman refraining during 27 years from the exercise of her right to claim her freedom, and having, after this lapse of time six children and grand-children, (and she might have had a much greater number) forms certainly an event which cannot be reasonably supposed to have been thought of or contemplated by’jthe vendor in 1802. It brings this case withIn thé exception which exempts the vendor in good faith from the ¡ruinous obligation of paying the whole of the increased value of the thing sold ; Pothier Vente, Nos. 136 and 137. This edict of Justinian, never had the force of positive law in this country, hut the principle upon which it is founded is so consonant to equity -and reason, that we feel bound to follow it and give as an indemnity an amount equal to the value of the thing sold, to wit: $625.

Principles of tlie Roman law, which never had the force of positive law in this country ; but which are founded in equity and reason, will he adopted as rules, regulating the indemnity, to which a party is liable, on his warranty. So it is improbable, that parties ever contemplated, that the damages in case of eviction should be larger than the value of subject matter go vliere tllg maieslave pur" elmed in 1802, the vendor re-jjrieefis atier-ñeTfecréusíor cJiadre,l> the vendor is only to pay as damages, tie value or original price of said slave, and not the value slaves^ borrT of ^ though mucl* greater.

As remarks the judicious and learned Dumoulin, it is improbable that the parties ever contemplated that the damages in case of eviction, should be larger than the value of the subject matter of the contract, “ quia verisimiliter non fuit prsevi-sum nec cogitatnm de suscipiendo majori damno vel periculo, ultra rem principalem, quam sit res ipsa principalis Nos. 57 and 60, Idem Tract. This indemnity appears to us fair and even liberal, when it is considered that the vendees have been reimbursed the whole amount of the money paid for Polly Edwards in 1802. After they had enjoyed her services during 27 years, nearly the whole of the ordinary time of service of a slave, they were perhaps entitled to recover only a portion of the price for the probable remainder of the lifetime, because in the sale of a slave the warranty of the vendor does not con'template the perpetual enjoyment of- the thing sold as in the case of a tract of land ; but only such a temporary enjoyment as a slave is susceptible of by the laws of nature : Pothier vente No. 163 '; Dig. Lib. 19, T. 1, Law 45; Dumoulin, Nos. 127 and 128.

It is’therefore ordered, adjudged and decreed, that the judg- , ment 01 the District Court be so amended as to allow to the defendants against the estate of the late Joseph Andrus, instead of $4800, the sum of $625 with costs below; those of this appeal to he home by the appellees.