Stearns, Respondent, vs. McCullough, Appellant, 18 Mo. 411

GAMBLE, Judge, delivered the opinion of the court. In October, 1851, McCullough sold a negro girl to Stearns for $500, with a warranty of soundness. Soon after the sale she was known to be unwell, and in May following died. The present action is upon the warranty of the soundness of the slave, charging that the slave, at the time of the sale, was diseased, and afterwards died of that disease, and claiming, also, for the labor, trouble and expense of keeping the slave.

There was no offer to return the slave, and after verdict the plaintiff remitted the amount which, in his petition, he had claimed for keeping the slave. The answer of the defendant admits the sale and warranty, and the death of the slave, but denies her unsoundness at the time of the sale. 1. At the trial, there was evidence given by both parties on :the question whether the slave was unsound at the time of the sale, or had then any disease which produced her death.

The instructions given by the court placed the question of unsoundness, at tbe time of tbe sale, before tbe jury in a light as favorable to tbe defendant as the law would justify; but on tbe measure of damages, two instructions were given which were in conflict with each .other, and that given at the instance of the plaintiff was erroneous.

The jury were told in the second instruction given for the plain)iff, that if the slave was unsound at the time of the sale to plaintiff, and in consequence of said unsoundness died, they must find a verdict for the plaintiff and assess his damages at an amount equal to the value of the slave, if she had been sound.

Assuming that the court took the price paid to be the value of the slave, if sound, this instruction would authorize a purchaser who had held and used a slave for a long time, to recover back the entire purchase money, if the slave ultimately died of any disease existing at the time of the sale, without any consideration of the value of the services rendered by the slave. The language of the instruction is imperative, that the purchaser was entitled to recover the value of the slave, if disease existed at the time of sale, and that disease subsequently produced death.

The evidence in the case showed that the slave, for several months after the sale, was engaged attending to the ordinary duties of a domestic servant. The instruction given for the defendant on the measure of damages, states the rule properly. They were told in that instruction that if the negro girl was unsound at the timo of the Sale, the measure of damages was the difference between the value of the slave, if sound, and her value with the disease or unsoundness. The judgment is, with the concurrence of the other judges, reversed, and the cause is remanded for further proceedings.