McLean v. Fulford , 14 La. Ann. 711 ( 1859 )

Buchanan, J.

Plaintiff sold defendant a slave, warranted sound in mind and body, in March, 1857, for eight hundred dollars, in two notes; one payable thirty days after the sale, and the other on the 1st of January, 1858, of four hundred dollars each. The first note was paid at maturity. This suit was instituted upon the other note in September, 1858.

Defendant pleads, that the consideration of the note has failed ; that the slave is so imbecile and unsound of mind, as to be entirely worthless; which fact was concealed from defendant by plaintiff.

The evidence of the redhibitory defect is vague. One of the two witnesses . called by defendant on this point, is a physician, who attended the slave for dysentery, in October, 1857. He says, “ I came to the conclusion, that if she was not imbecile, she was not far removed from it.” The other witness, a subscribing witness to the bill of sale, says that he has known the slave since 1851 or 1852, and “ did not think she was sound in body or mind, so far as I could judge.”

Prom the evidence given by these witnesses, as well as by a witness called by plaintiff, we think the mental weakness spoken of by them is to be classed among those apparent defects which, according to Art. 2297 of the Civil Code, do not give rise to the action of redhibition. The evidence negatives the allegation of concealment of the mental condition of the slave by plaintiff. She appears to have been known to the parties previous to the sale, and was probably raised in the neighborhood. •

As the defendant paid the first note without objection, the defence has the appearance of an afterthought.

Judgment affirmed, with costs.