
    John Crouch & Company vs. Edward Culbreath.
    
      Unsoundness — Evidence— Warranty.
    
    In questions of unsoundness where the disease is chronic, like rheumatism, it is not necessary to show that the symptoms existed at the time of the sale, for subsequent incidents and appearances may show that the disease existed before the sale, although the symptoms had not then been observed.
    The point ruled in Stephens vs Chappell, 3 Strob. 80, that, “the disease must be in a formed state evidenced by symptoms before it can affect the sale,” was intended to apply only to cases of fever having no fixed law for their commencement.
    The term “ organic” used in the opinion of the Court of Appeals in that case was inappropriate, and the Court prefer to adhere to the precise ruling of the Circuit Judge in that case.
    
      BEFOEE WARDLAW, J., AT EDGEFIELD, FALL TEEM, 1857.
    The report of bis Honor, tbe presiding Judge, is as follows:
    “ Assumpsit upon tbe warranty of a slave.
    “ Tbe plaintiffs are John Croucb and Henry 0. Culbreath, partners in tbe business of buying and selling slave?, both of wbom, wben- at borne, live at tbe bouse of tbe latter. Tbe defendant, uncle of Henry C. Culbreatb, is a farmer, and lives a mile from tbe plaintiffs.
    “ On tbe 18tb of October, 1856, tbe defendant sold to tbe plaintiffs a young negro man named Vincent, for one thousand and sixty dollars, and signed an acknowledgment that be bad received tbe said sum in payment for Vincent, to wbicb were subjoined tbe words, 'I warrant tbe said boy sound in body and mind.’ Tbe plaintiffs allege that Vincent was then unsound.
    “ Dr. Pitts was called to examine Vincent at tbe bouse of tbe plaintiffs, some short time after tbe sale, tbe beginning of-December, or beginning of January, (be rather thought tbe latter,) and made in company with Dr. Abney, as careful an examination as be could. It was possible that be might have been deceived by Vincent’s complaints; but bis conclusion was that Vincent then bad pains, stiffness of joints, and apparently a slight swelling of one ankle, and that these proceeded from -chronie rheumatism under wbicb be suffered. He considered tbe disease a difficult one to manage, liable to return after temporary relief, and almost ineradicable wben once fixed — often proceeding from acute rheumatism, but often also appearing first in tbe chronic form, and growing gradually worse, sometimes to tbe stiffening of joints and other times to less troublesome results. On tbe day of examination Vincent was able to walk slowly, and since that time Dr. Pitts has occasionally seen him moving about, but has not examined him. From tbe beginning of 185^ tbe Doctor knew Vincent — be practised by tbe year in tbe family of Edward Culbreatb, and was never called to see Vincent, and never beard complaint from bim before tbe examination.
    “ Two or three weeks after the sale, (time uncertain,) Dr. Pitts was present at defendant’s bouse when tbe plaintiff, Crouch, offered some sum to defendant if be would take Vincent back, saying that be was not well; tbe defendant answered that tbe boy was sound when he sold bim, and if be bad become diseased since, be did not want bim; that Vincent bad jerked him down; for that be bad sold bim, and be would not have bim back. Crouch threatened to sue.
    ■ “ Dr. John P. Abney was called to examine Vincent about five weeks after tbe sale, and made an examination, but withheld bis opinion then. Three or four days afterwards, he made another examination in company with Dr. Pitts. His opinion communicated to Dr. Pitts, and in which (be said) Dr. Pitts concurred, was that Vincent bad bad chronic rheumatism many years, and was then laboring under its effects. Tbe ligaments of bis joints were enlarged, and every tendon and muscle that stopped in those joints — tbe knee and ankle joints, tbe wrists too. In tbe words of "this witness, ‘I did not say that be was then tbe subject of chronic rheumatism, but be was laboring under tbe effects of disease, tbe results could have come only from one of two diseases, rheumatism or scrofula. I believe that the enlargement of bis joints was occasioned by scrofulous taint; and that tbe disease whose effects he was under, was scrofulous rheumatism. He could not bend his knee so as to touch bis buttocks with bis heels— be could not jump eighteen inches. I was not deceived. I cannot say whether bis deformity was tbe result of disease, or of natural malformation; if tbe former, (as I believe it was,) tbe disease must have existed for many years; if tbe latter, tbe deformity existed from bis birth. Scrofula, scrofulous rheumatism, and rheumatism are hereditary. I know old Isaac, Strother’s property, tbe reputed father of Vincent, between whom and Yincent there is a strong resemblance — be bad scrofula;' affecting bis bip joint, and causing ulceration of tbe tbigb bone. Yincent, no doubt, bad rheumatic pains for years, but may not have been stopped in his work a day.
    “ ‘ When I went tbe first time, Yincent was lying down rolling — said be bad tbe belly-ache — complained much of pains— bad excellent use of bis tongue. Crouch was then making preparations to start westward with negroes — Yincent said be was mighty willing to go — would go any where, so be did not belong to a Culbreath. At tbe second examination, be walked into tbe bouse, but walked badly. I have seen him since frequently, but have not examined him; I think be has worked in H. 0. Culbreatb’s farm, but has not worked much. I would not have him to keep — do not think be is worth above fifty dollars.’
    “Further testimony for tbe plaintiff was, that in August, 1853, in working upon tbe road, to some joke about the patrol, Yincent said that bis ankles hurt him, and be could not run; and at another time before tbe sale, when a man, who was cutting on one side of a tree, whilst Yincent was cutting below on tbe other side, proposed to stand on bis-foot, be complained of pain in bis ankle.
    “ That old Isaac and Yincent recognise- each other, and are reputed as father and son, and that old Isaac goes on crutches.
    “ That shortly after tbe sale, (time indefinite,) Yincent was lent to a neighbor to help in killing bogs, and walked so badly, that tbe neighbor let him ride home.
    , “That for many years Yincent was observed to move badly, and bis difficulty of motion has increased — a month before tbe trial be tried to jump, and could not exceed two feet.
    
      “ That H. C. Culbreath was not present when tbe defendant offered Yincent for sale to Crouch, and at that time tbe defendant said nothing of Yincent’s having jerked him down.
    “That Crouch went with negroes to tbe West, leaving Yincent behind, and before be went, H. 0. Culbreath made offers to tbe defendant; first, of one hundred dollars to take-Yincent back; second, to arbitrate; third, of two hundred dollars to rescind; all of which the defendant refused, saying that the boy was sound when he sold him, and that he would not have him again as he had jerked him down — and that H. C. Culbreath deprecated his uncle’s displeasure, but said that he himself had had nothing to do with the trade, and declared that Crouch would sue; and that suit was afterwards commenced ; and that Thomas Coleman, whose ancle had been distorted by rheumatism, saw in Yincent’s appearance and gait what he considered evidence of rheumatism or something of that kind; deemed him since the sale unable to. plough, and at the most not worth more than two or three hundred dollars.
    “Eor the defendant, there was testimony that the defendant, by the agency of his son Isham, bought Yincent in 1845 ; that Yincent was then about ten years old,' and since has grown to be a very large, stout and strong fellow; that he was always clumsy, and was (as it was variously termed) double-jointed, box-anlcled, or African-footed; but that up to the sale he was considered perfectly sound by those who had the best opportunities for knowing him, and had never been known by any of them to complain, except once when he had a cold, which was removed by a dose of lye-tea. Those persons were Julius Dean, (a nephew of the defendant’s, and a cousin of H. C. Culbreath’s,) who had lived two years in defendant’s house, and a longer time close by; Wesley Cul-breath, a son of defendant’s, who had often worked with Yin-eent, and one year was overseer; Dr. John Maynard, who lived in defendant’s house and practised in his family 1849-1852; Ben. Saunders, who lived near to the defendant and Robert Bryan, Esq.., whose daughter was married to Isham Culbreath (a son of defendant’s, who lives on his plantation and superintends his business.) The last-named witness knew Yincent before the defendant got him and ever since; considered Mm perfectly sound, and of a large and valuable family of negroes, and said that be could run before be was sold to tbe plaintiffs. Most of tbe others spoke of bim as gangling, not active, but saw no change in bis gait or in bis ankles; further, that in April, 1857, H. C. Culbreatb bad sent Yincent to a log-rolling at Wesley CulbreatMs, and in tbe division of bands, Yincent was chosen amongst tbe first; but of three witnesses who spoke of this log-rolling, all bad been in a squad different from that which Yincent bad been in, and tbe only work actually done by Yincent that day, which any one could testify to, was bis helping to lift a heavy log, which was put down without being moved from tbe place it bad lain in; that Yincent was once seen sawing with a cross-cut saw at H. C. Oulbreatb’s, and was at a house-raising there, but did nothing; that H. C. Culbreatb knew Yincent well; in 1855 bad asked the defendant if he would sell him, but had made no offer for him: and when asked, in conversation with the defendant since the sale, if he had not been trying to buy him, had answered, “Yes, but Isham always asked too much for him.” That E. M. Scurry (who was at the examination by the physicians, and had known Yincent from 1849, and had noticed his movements as slothful) had heard of the plaintiffs’ proposition to lose two hundred dollars, and had concerted with Henry Chappell to buy Yincent if he could be got at eight hundred and sixty dollars, and had told this to the defendant the last of September, 1857 — Scurry understanding, but not saying, that defendant was to warrant; upon this the defendant applied to Crouch, asking if he was willing to lose two hundred dollars; Crouch replied, “Yes, two hundred and fifteen dollars — that is interest on one thousand and sixty dollars for a year, and fees, amounting together to one hundred and fifteen dollars, and one hundred dollars additional — so that if you repay nine hundred and sixty dollars, you shall have the boy.” Defendant said he thought the hire of the boy should be equal to the interest, and Crouch said, “He has not-been worth one cent to me.” The substance of what Crouch had offered in this interview, he repeated next day in a letter to the defendant, dated September 26, 1857; Scurry testified that if Yin-cent was such as the physicians thought him, he would not have him, and that after lifting the log, (which he had seen at the log-rolling) Yincent could not, in-his opinion, have walked with.it.
    “The case was fully argued, and all the testimony on either side was commented upon by counsel. The plaintiffs’ counsel insisting that the breach of warranty had been shown to such extent as to authorize a verdict for the whole or the greater part of the price which the plaintiffs had paid; the defendants contending that no breach had been shown; that Yincent was sound • at the sale, and his subsequent attack was either feigned, or was so slight that he had entirely recovered from it, or at any rate that disease, if any existed, had supervened the contract; that the want of flexibility in his joints, if any really existed, was the result of natural malformation, or of disease which had passed away and was no longer to be manifested by symptoms, and therefore was not unsoundness; that scrofulous taint, if that had produced enlargement of the ligaments, was predisposition, not formed disease; and that Yincent labored only under the misshapen ugliness common to many Africans.
    “I submitted the facts to the jury, not attempting to state the testimony in detail, but referring to such parts as were most pertinent to the prominent questions that were raised. I adopted the definition of unsoundness which is given in Stephens vs. Ghappell, 3 Stob. 84, as that is explained by that case itself; saying that the word organic is there inaptly used, for a formed disease, manifested by symptoms, and materially affecting the value, may be either organic or functional. I distinguished between predisposition and disease, and required symptoms to characterize the latter, but held that subsequent incidents and appearances might show that disease bad existed at a previous time, although the symptoms had not then been observed. I instructed the jury that congenital malformation was not unsoundness, instancing club-foot, short-sightedness, deafness and other defects, about which I then doubted and now doubt; but I distinguished between mere malformation and disease, the latter of which might also be congenital, and as a criterion I suggested that disease grew worse, but mere malformation remained unchanged. I held that a permanent defect,, materially affecting the value, which had resulted from disease, was unsoundness — was itself disease, although unaccompanied by pain, more especially when it was attended by a special liability to the return of paroxysms of disease, and that such result was in many instances an organic lesion, palpable to the senses, itself a symptom of the functional derangement which it necessarily produced. I submitted the questions of fact arising under these propositions, and I commented upon them only because they arose naturally from the testimony of Dr. Abney and the argument of the defendant’s counsel. Touching the question of unsoundness at the sale, this case demanded notice only of chronic rheumatism in its various forms; but to illustrate the law involved in that question, so far as it depended upon Dr. Abney’s alternative views, the distinctions between malformation and disease, between congenital misshapedness and congenital disease, between disease and the result of disease, between organic disease and functional disease, and between transient symptoms of irregular action and permanent visible alterations of the structure, were hastily glanced at; and, besides the instances mentioned, cases were in mind of congenital syphilis, congenital hernia before and after one strangulation, broken bones healed, dangerous bleeding at the nose, and other cases which any one that thinks of either of these distinctions, may imagine.
    “ The jury found for the plaintiffs $200.”
    
      Tbe defendant appealed, and now moved tbis Court for a new trial, on tbe grounds:
    1. Because, it. is respectfully submitted, his Honor, tbe presiding Judge, erred in charging tbe jury that tbe law relative to unsoundness in a slave, is incorrectly stated in tbe case of Stephens vs. Ohappell — that in tbe phrase “ organic disease,” tbe word “ organic” was improperly admitted; that disease may be functional as well as organic, and being functional it may constitute a case of unsoundness.
    2. Because bis Honor charged that tbe disease may have existed in tbe slave, although no symptoms may have been perceptible at tbe time of tbe sale, or previously to it.
    3. Because bis Honor charged that natural malformations, which grew worse, even after tbe sale, so as to impair tbe value of tbe slave, will constitute unsoundness.
    4. Because bis Honor, in commenting on tbe evidence of Dr. Abney, misled tbe jury in tbis particular. The said witness bad testified that tbe negro slave in dispute, when examined by him, was not laboring under any disease, but was affected with tbe results of disease. His Honor charged tbe jury, that disease and tbe results of disease, were in effect tbe same — that results of disease only showed that tbe negro bad-been previously affected by disease.
    5. Because bis Honor, in charging tbe jury, commented favorably upon tbe evidence in favor of tbe plaintiffs, and wholly ignored tbe testimony of tbe defendant.
    6. Because tbe verdict was clearly contrary to tbe law and the evidence; tbe defendant having established the fact by witnesses of unquestionable character, who bad good oppbr-tunities of knowing tbe negro well, that up to tbe time of tbe sale, tbe said slave was perfectly sound and bealtby, and that be entirely recovered to all appearance, from tbis temporary attack in January last, as described by plaintiffs’ witnesses, and was engaged by tbe plaintiffs and others in tbe most laborious employments.
    
      Moragne, for appellant.
    
      Carroll, contra.
   Tbe opinion of tbe Court was delivered by

O’Neall, J.

In tbis case we perceive no reason to disturb tbe verdict. But it is thought advisable to make a slight explanation of the case of Stephens vs. Chappell, 3 Strob. 80.

That case, it will be seen on referring to it, placed tbe defence of tbe defendant upon tbe ground, that when be bought tbe woman, she had the seeds of the disease, (typhoid fever,) in her system.

It was of tbis disease, that tbe judge trying the case ruled that “ such a thing as typhoid fever being considered like small-pox, as having a beginning before tbe symptoms are discovered, cannot be,” and in which be stated tbe rule to be in such a case as (“ typhoid fever,”) that “ tbe disease must be in a formed state evidenced by symptoms, before it could affect tbe sale.”

• Tbis rule of course extends to all cases of fever having no fixed law for their commencement.

It never was intended to apply to chronic cases, such as rheumatism.

The word “organic” used by my much respected brother Evans, was inappropriate to tbe case; and tbe Court prefer to adhere to the precise ruling of the judge below, in that case. It was that, and that alone, wbicb tbis Court intended to affirm.

Tbe motion is dismissed.

Wardlaw, Withers, Whitner, G-LoTERandMuNRO, JJ., concurred.

Motion dismissed.  