The New York herald., 1868-04-28
United STATES SUPREME COURT.
The VcsI"s Scenes of siayer,-The sale of
the Ch0stei -iiedhibi;ion Under the Louisiana
sf,fufe.

statute.
Joseph Aa2,s7fS, Pl7iitlG "a Error, rs CRas. 4.
Hsns'er-Appeel nom the Circuit Court for tile
Eastern district of louisiana This Is an action TO res
clnd sale OF slaves under The old redhlbtory statute
OF louisiana. The question was raised at the bar
whether, slavery having passed away the court
would now consider or entertain a claim for their
value; but us the decision of the court below was
against the rescsson of the SALE anu as this court
hold upon an examination OF the merits of the
appeal. that the Judgment must be affirmed that
question is not considered in the opinion Had judg-
men here been one of reversal on the merits the
the question raised at The bar would have presented
itself to the court Pierre Soule formerly Senator
ffom Louisiana appears as counsel in the case. Mr..
Justice Field delivered the opinion of the cour-Ia
March, 1859, the plaintiff purchased four slaves for
the consideration OF si,5oo, with warranty that
they were free from the vices AMI mala-
dies specified In the laws. The present action
Is brought for reScssion of the sale tn, restitu
ion OF the price and for damages 1t Is called in the
language OF the code OF Louisiana from which State
the case comes to this court redhibtOry action
and redhibition by the code, is defined to be sthe
avoiance or sale on account OF some vice or defect
in the thing sold which renders 1t eiaher absolutely
useless or It's use so nconyenent and imperfect that
purchased 1t had he known OF the vice. IArt 4o8
The petition which Is the first pleading in the action
after stating the sale, alleges that the slaves were at
the time afflicted with various vices and ma,adies
that were known to the defendant from which two
OF the slaves have since died, and the remaining two
have been rendered useless and their services have
become useless ana imperfect that the plainti(Y
would not have purchased them had he known the
defects. Inc nrst answer Of the defendant consists
OF general denial. The second or amended answer,
filed by permission OF the court AYERS IN substance
that the auctioneer who sold the slaves for the
defendant declared at the time at his request that
they must be examined by the physician or the pur-
chaser previous to their delivery, but that the
plaintiff was In such haste to obtain possession OF the
slaves purchased that he removed chem without ex-
animation before the act Of the sale was passed. and
hence insists that II any loss has occurred to the
pantiff II has been brought through his own ncgli-
gence and disregard of the terms OF tine sale for
which the defendant is not responsible. on the trial.
the plaintiff contended that the specific de.
fence set up In the amended answer was waiver of
the genera denial, and that il admitted the liability
OF tue defendant TO refund the price OF the slaves FOR
the defects stated in the petition, and placed his s
charge from such liability upon the neglect or src-
gard by the paintlif of the terms OF sale. AMI
requested the court to instruct the Jury to that effect
The refusal thus to Instruct the jury Is the ground
or the first objection presented. Treating the
amended answer as an answer in addition to the
general denial we 40 not perceive any error Ia the
refusal The rule which prevails IN Louisiana on
the subject OF general and special pleas a. declared
In the decisions OF her courts, is that they may be
presented together, IL consistent with each other.
Inconsistent or contradictory pleas alone are for
biiden (Nagle' vs.. Minot. Martin. 4o3.) The
amended answer amounts only to me q, ernents OF
fact which, If established would tend To show that
the answer alleged In the petition not given in
the form averred 1t only specifics particular fact
In aid OF the general denial. The second exception
is to that part Of the charge which relates to The
pciIOu within WHICH III was necessary Tor the pur
chaser to tender back offer to return the slaves.
The court charged, "that In order TO complete re-
session OF the contract the tender should have been
maze IN reasonable time, ana II the jury found that
II was not made in a reasonable time. the plaintiff
was only entitled to recover for the damages he had
sustained by the slaves being de.ective.r The civil
code of Louisiana, when the action was com
menced, limited 10 one year the time In which
actions could be brought for the RECESSION OF
sales Of slaves on account OF redhbitory de-
fects, and hence 1t Is intended that the pur-
chaser had the same period within which to oiler
the return OF the slaves TO the vender The rule that
he who seeks 10 rescnd contract OF sale must first
oIer TO return the property received and place the
other party in the position he formerly occupied SO
far ~ practicable, prevails equally at the civil and
the common law. IL Is q rule founded i'm natural
justice, and requires that the offer shall be made by
tue purchaser To his vender upon the discovery OF
the defects for which the rescsion is asked. The
vender may then receive back the property, and b.
able by proper and attention. to preserve it,
he may have recourse upon other parties, the remc-
dies against whom might be lost by delay. He must
be permitted to Judge for himself what are
necessary for his interest and protection and IL the
purchaser by delay, depriyes him of the opportunity
csion of the contract. The purchaser use rea-
sonabe diligence 10 apprise his vender OF the defects
all ged and to make the tender; and what il reason
able diligence Is question of fact, to be decided by
the jury, according to the special circumstances OF
each (Rider w. Rider, Marshall 10 La. Am.
Rep, 127.) Judgment affirmed.