Richardson v. Johnson

¶1*390The judgment of the court was pronounced by

¶2The plaintiif, who was a citizen of the republic of Texas before its annexation to the United States, alleges that he purchased from the defendant, for the sum of $400, a slave which he took with him to Texas ; and that the slave was, at the time of the sale, affected by a disease of the eyes, occasioning a permanent defect of vision, by reason whereof the said slave is absolutely useless to him. He further avers that he would return the slave and pray for a reeision of the contract, but that he is prevented from doing so by the laws of Congress. He therefore prays that the defendant may be adjudged to pay him the sum of $400, with interest thereon, and the costs of spit. He also prays for general relief.

¶3The defendant excepted to the plaintiff’s petition, and the allegations therein contained, as insufficient in law to support the action against him. The District Court sustained the exception, and the plaintiif has appealed from the judgment dismissing his petition.

¶4The plaintiff contends that the petition substantially alleges an act of the defendant, which has caused damage to him, and that, under art. 2294 of the Civ. Code, the defendant is bound to repair that damage. If our Codes contained no special disposition for cases like the present, the action of the plaintiff might probably be maintained, under the general principle he invokes; but our laws on the contract of sale, in defining the various remedies given to the purchaser by the action ex enipto,have provided that such wrongs as the plaintiif complains of, can only be redressed by the action of redhibition, or the action quanti minoris. It was therefore incumbent upon him to have resorted to one of those actions. We are of opinion that he has failed to do so. He alleges that he is prevented by the laws of Congress from returning the slave; and while he retains the slave on that ground, he asks for judgment for the price and interest, and prays for general relief. This he cannot legally do. Before he can recover the price and interest, he must make a tender of the slave to the defendant, and cause the sale to be rescinded. The plaintiff’s counsel alleges that this may be considered as an informal action for the reduction of the price. It was not so intended, and we do not consider ourselves at liberty to view it in that light. When particular forms of action are prescribed by law, it is necessary to an intelligent administration of justice that those forms should be complied with.

¶5To prevent unprofitable litigation, it is proper to state that, under the general plea of the defendant, the allegations of the plaintiff are insufficient in law to maintain his action on other grounds. He avers that the slave was affected, at the time of the sale, by a disease of the eyes, occasioning a permanent defect of vision; but he does not charge the defendant with fraud. A disease of the eyes is an apparent defect which he might have discovered by simple inspection, and against which the defendant does not warrant, unless he used fraudulent means to conceal it at the time of the sale. Civil Code, arts. 2497, 1841.

¶6Judgment affirmed.