Fleming v. Toler , 7 Gratt. 310 ( 1851 )

This was an action of debt in the Circuit court of Goochland county, brought by William T. Toler, administrator of William Toler deceased, against Tarlton Fleming and John B. Pemberton. The action was founded on the following bond:

"Know all men by these presents, that we, Tarlton Fleming and John B. Pemberton are held and firmly bound unto William T. Toler, administrator of William Toler deceased, in the just and full sum of eleven hundred dollars, to be paid unto the said William T. Toler, administrator of the said William Toler deceased, his certain attorney, his executors, administrators and assigns; to which payment well and truly to be made, we bind ourselves, our heirs, executors and administrators, firmly by these presents. Sealed with our seals, and dated this 23d day of October one thousand eight hundred and thirty-eight. The condition of the above obligation is such, that if the above bound Tarlton Fleming and John B. Pemberton, their heirs, executors or administrators, do and shall well and truly pay, or cause to be paid, unto the said William T. Toler, administrator of said William Toler deceased, his certain attorney, his executors, administrators or assigns, the just sum of eleven hundred dollars, twelve months after the date hereof, then the above obligation to be void, or else to remain in full force and virtue.

Tarlton Fleming, Seal.

John B. Pemberton, Seal.

Fleming appeared and filed a plea of payment; and at a subsequent term he filed a special plea under the statute. In this plea he alleged that the bond sued on was executed by the defendants to the plaintiff for the price of a negro man slave, sold by the plaintiff to Fleming, for the sum of 1100 dollars; Fleming then believing that the slave was sound and healthy and free from blemish. That at the time of said sale, the slave was defective in this: that he was diseased; and was constitutionally liable to periodical returns of bilious colick once every week, and so continued to be; of which defect plaintiff was informed at the time of the sale, and fraudulently concealed his knowledge of said defect, and the fact of said defect from the defendant Fleming, whereby Fleming was induced to purchase said slave of the plaintiff as a sound slave, without any defect; and the defendant averred that the defect lessened the value of the slave 900 dollars, which the defendant proposed to set off against the debt declared upon. Upon this plea, and that of payment, the plaintiff took issue.

At another term of the Court the defendant tendered two other special pleas under the statute. The first after stating as in the special plea filed, the execution of the bond for the price of a negro man slave, sold by the plaintiff to the defendant Fleming, averred that on the day of sale the slave was unsound, defective and constitutionally diseased, and still continued to be so. That at the time of said sale the plaintiff well knowing that the slave was so unsound, defective and diseased as aforesaid, did not disclose the same to the defendant, but fraudulently concealed the same and all knowledge on the part of him, the plaintiff, in relation thereto from the defendant; by means whereof the defendant believing that the said slave was sound, healthy and free from blemish, was induced to purchase and did purchase the slave as a healthy slave at the price of 1100 dollars. That after the sale and purchase, and as soon as defendant discovered that the slave was so unsound, defective and diseased as aforesaid, viz.: on c., he apprised the plaintiff thereof, and notified him that he should resist the payment of the bond executed by him to the plaintiff as aforesaid. And that after he had so discovered that the slave was unsound, and within a reasonable time thereafter, viz.: on the 24th of October 1839, he offered to return the said slave to the plaintiff, and demanded a rescision of the said contract of sale, and the surrender to him by the plaintiff of said bond; but the plaintiff then and there refused to comply with such demand, or to surrender the said bond. That defendant had always been ready and willing to return the said slave and receive back his bond, and was willing still so to do. Whereby defendant had sustained damage to the whole amount mentioned in the bond, viz.: 1100 dollars, with interest thereon from the 23d of October 1839 till paid. Wherefore he prayed judgment, and that the plaintiff be barred to have or maintain his aforesaid action thereof against him.

The second plea tendered only varied from the first by the omission of the averment of damages. The Court rejected both the pleas, and the defendant excepted.

When the cause came on for trial the jury found a verdict as follows: "We, the jury, find for the plaintiff the debt in the declaration mentioned, with interest thereon, from the 23d of October 1839 till paid." And on this verdict the Court rendered a judgment, that the plaintiff recover against the defendants eleven hundred dollars, the debt in the declaration mentioned, with six per cent, per annum interest thereon from the 23d day of October 1839 till paid, and his costs by him about his suit in this behalf expended. From this judgment Fleming applied to this Court for asupersedeas, which was awarded. The Court is of opinion, that the pleas tendered by the plaintiff in error, and set out in his first and second bills of exceptions, were good in form and substance, and presented a proper defence to the action; and as the same were not objected to on account of the time at which they were offered, they should have been received. But the gravamen of each of said pleas was the unsoundness of the slave, a fact also put in issue by the special plea on which issue was joined; it being competent for the plaintiff in error on the issue joined on that plea, to have given any evidence of general unsoundness, notwithstanding the plea, in addition to the averment that the slave was defective and diseased, also specified a particular disease. As all the pleas concurred in resting on the proof of the existence of a disease or defect amounting to unsoundness, and that such defect, though known to the defendant in error, was fraudulently concealed by him; and differed merely as to the measure of relief resulting from the establishment of the facts aforesaid; and the existence of such facts being negatived by the finding of the jury on the plea putting the existence of such facts in issue, it is manifest the plaintiff in error was not prejudiced by the rejection of said pleas. There is no exception to the rejection of any testimony offered by him at the trial. If he failed to offer proof which would have been proper under the issue, it was his own fault; he could have offered, and from the whole record it is most probable he did offer, all the proof in his power to sustain his defence, and the verdict of the jury is not objected to: It therefore must be taken as concluding the facts alleged in the pleas which were rejected, and the judgment thereupon was plainly right.

The Court is further of opinion, that although the obligation sued on purports to be a penal bill, yet as the sums named in the penalty and condition correspond, there was no error in treating it as a simple obligation and rendering a verdict and judgment for the amount, with continuing interest from the time the same fell due.