
    SAMPLE vs. LOONEY.
    Case.—The counts in the declaration were indebitatus assumpsit, for 337 1-2 dollars, for a negro girl sold and delivered quantum valebat, and quantum meruit, for another negro girl. Upon examination of the testimony it appeared by the oath of Mr. Robertson, that he was present when the negro girl named Milly, alluded to was sold by his relation Mr. Milton to the plaintiff.—When in treaty respecting the purchase of this girl, Milton's wife, and perhaps others of his family told the plaintiff, that the girl was subject to convulsion fits: they appeared to be attached to her, and used persuasions with Milton not to sell the girl, an account of her infirmity. Robertson, the witness then advised his relation if he would sell the girl, not to ask, or take a full price for her, as he might bring himself into trouble in future. The plaintiff was present at all this conversation, but still persisted in endeavoring to purchase the girl which he did for much less than negroes of her appearance and age usually sold for.
    
      Inassumpsit bro't by the vendor of a negro warranted sound to recover the price, the defendant may give in evidence that the negro was unsound in mitigation of damages.
    
      The plaintiff then sold the girl to the defendant, being in his boat, on his way to the Natchez, for the sum of 337 1-2 dollars, a full price, to be paid upon Looney’s return. The plaintiff, upon the sale represented her to be sound and healthy, which appeared from the testimony of Norris who was present at the time of the sale. Mr. Price a witness for the defendant proved that he lived near the plaintiff, who told the witness that Milly had fits after he purchased her and that he had sold her to the defendant as sound; but as he was going to the Natchez he could make his own out of her, and requested the witness not to say any thing about it.
    Stewart, for the plaintiff,
    objected, that it was improper for any evidence respecting fraud or imposition in the sale of the negro to go to the jury in mitigation of damages, because it was, and might be, a subject for a distinct cause of action by the defendant against the plaintiff. In such an action, supposing it to be hereafter commenced, the verdict in this action cannot be given it evidence. So as to be a bar. 
    
    
      
       Esp. Rep. 42.
    
    
      
       1 Call 316 370. Hay. 464.
    
   Overton j.

The case of Sintsenick vs. Lucas, in principle certainly does not apply to this. It is true with respect to juidicial proceedings, that the subject of any prior adjudication, cannot be re-examined, unless in due course of law by appeal, or writ of error; but to make the record of a former judicial proceeding a bar and conclusive, it should appear that the particular point in discussion had been formerly examined and decided. If it should not appear that the point had been previously an object of judicial enquiry, and determination, yet consistent with the precedents and books of entries, it would seem to me, that it may have been determined, for instance under the common count for goods, wares and merchandize sold and delivered and for work and labour done, it cannot appear what particular articles were subjudice. This, as to the plea of a former recovery, it would seem to me, should be the subject of averment, and open to proof; and so it would seem as to such a plea, or one in its nature similar; which perhaps may be sustained in any action hereafter brought by the defendant against the plaintiff, upon the ground of the false representation; provided the evidence is now admitted.

But if not pleadable according to the principles of law, it surely may be given in evidence under the general issue, where the action is bottomed on matter of parol contract, and the nature of the defence could not be otherwise than known to the plaintiff, as the nature of the contract, or special notice. On this, however it is not necessary to give any absolate opinion: The case Esp. Rep. seems perfectly consistent with these principles. In that case evidence was objected to, because the matter in dispute might have been given in evidence in mitigation of damages in a former suit between the same parties, but there, we find the objection was overuled, and with propriety, because it did not appear to the court, that the subject matter of that action had been investigated in a former one. Inferences from this and other cases, result in the position as it strikes me, that in the equitable action of assumpsit, whether a former determination has been had or not is open to proof where the record is not precise in disclosing the fact. The good of the public as well as the principles of the common law are opposed to circuity of action, and it certainly comports with the maxim expedit reipublicae ut finis aliquis sit lilium, that the evidence should be admitted and that either by plea or proof under the general issue: the now plaintiff may avail himself of the recovery made in this action by liquidation and discount. Under these impressions, I am of opinion, that the evidence is proper for the Jury.

White j.

—Doubted, upon which the discussion was continued by Stewart and Wharton for plaintiff, and by Hamilton and Barry for defendant ; after which White, j.—Said the doubt which existed with him was whether the plaintiff in this action could in an action which be hereafter commenced by the defendant shew satisfaction by a reduction of the damages in this—Public utility seems clearly to require, that if justice can be done as well in one action as by having two, that is should be the case—None of the authorities shew that the evidence ought not to be admitted, and the general principles which govern actions upon the case founded upon contract, are evincive in my opinion, that matters which go in mitigation of damages in most instances should be admitted in evidence.

Hamilton and Barry, in reply,

contended that the evidence sufficiently shewed, that it was the intention of the plaintiff to represent the negro sound at the time of sale, but if it were not clear that such was his meaning, the law would imply a warranty as the plaintiff had contracted for a full and sound price.

This I take to be one of those cases, and as it seems to me, that the plaintiff in this action may by plea containing proper averments repel any claim to be hereafter exhibited against him by the defendant, upon the representation, I am of opinion the evidence should be admitted.

Campbell, j.

—Concurred.

The witness then proceeded—The cause was opened by Stewart and Wharton for plaintiff, observing that the representation of the plaintiff on the sale of the negro did not appear clearly to have been in the present tense and that the contract could not be avoided in toto and cited Esp. N. P. 12 13. 2. Pow. Cont. 137. 147.

By the court to the jury. This case depends principally upon the evidence.

In your view of it, you will carry in mind such principles of the law of contracts, as appear applicable to the case before you. The first principle in a question of this kind, is that mankind in their contracts, should act fairly and openly, conformably to the maxim of morality as well as law, that suppresio veri or suggestio falsi in most cases are sufficient to avoid contracts, but in this case it seems to the court, that though you may be of opinion there was fraud or imposition used by the plaintiff in the sale of the negro, yet it will not be sufficient to annul the contract entirely, for this purpose it seems necessary that the defendant, should have returned the negro, or made a tender of her, unless that were done,it will still be open or obligatory; but we are of opinion not to the extent of the contract provided the defendant was imposed upon in the sale, but of this you are the judges. If there was, a representation which the plaintiff knew to be false, he should be answerable to the extent of its meaning, or if you should be of opinion that there was not false representation & that the plaintiff contracted for the full price of a sound negro of her description and that the defect was not visible to a man of ordinary prudence, the plaintiff's should be still responsible to the defendant, if he knew of the defect; for if it was not visible, the law of the land, of justice and morality, would require that he should disclose such defect to the defendant—In a word, that the parties to the contract should have an opportunity of knowing the situation of the subject forming the ground of that contract.

In either view of the subject, should you be of opinion, from the evidence that the negro falls short of what she was represented to be, was not such as she appeared, by reason of some invisible defect, known to the plaintiff and not disclosed by him, you will consider the difference in value between the negro as she really was when delivered, and such a one as the defendant supposed he was buying, deduct that sum from the sum intended to be given; and give a verdict for the balance; but on the contrary should you think that there was no false representation nor any invisible defect, but that the negro was what she appeared to be then you will find a verdict for the plaintiff for the amount of the sum stipulated to be given.

Verdict for the plaintiff damage seventy dollars.

Two witnesses Scoby and Hollingsworth, were produced to discredit Price, one of the defendants witnesses—one of them declared that he heard Price tell the story before, that it was the same in substance with the account he had now given on oath, and that he was a man of good character, reputed to be just in his accounts and dealings.

Hollingsworth stated that he had understood there had been some misunderstanding between the plaintiff and Price, but gave Price a good character.

Two other witnesses were produced to controvert the charge of unsoundness in the negro. They declared that they lived near the plaintiff and were frequently at his house during the few months the negro was in his possession, and did not know nor hear that she was subject to fits.

It was moved that the attendance of these four witnesses should not be taxed against the defendant as proving nothing material.

Overton, j.

—thought they ought not to be taxed against the defendant, under the peculiar circumstances of this case. The act of assembly declares that not more than two witnesses to any particular fact, shall be taxed against the party cast. The defendant instead of instituting a suit for damages sustained in consequence of the imposition in the negro, thought proper to introduce a witness to that effect in this action for the purpose of mitigating the damages. In this view of the subject he has succeeded though defendant in the action, and it was to be lamented that the act of assembly would not permit a taxation of all the costs accruing on this ground to the plaintiff. The law however is otherwise and it cannot be done.

If witnesses are produced for either party and upon examination know nothing of the matter in dispute, the party summoning surely should not recover the expense of their attendance; nor should a recovery be made for the attendance of witnesses, whose evidence cannot possibly weigh with a jury.

The evidence of the two first witnesses strikes me in this point of view. So far from impeaching the credit of Price, it would confirm it if impaired. Nor does the testimony of the two last witnesses appear to be much more pertinent for the plaintiff.

Though the negro might not in the presence of either have a fit, such a fit would not be inconsistent with what they have disclosed. As the testimony of Robertson who swears to the complete knowledge of the plaintiff respecting the unsoundness of the girl, is not impeached, and as the evidence of these two witnesses, does not seem to be so material as to meet the proposition of unsoundness in the girl, their testimony is so light as to deserve no kind of consideration. Upon these grounds he thought, the plaintiff, who summoned should pay for the attendance of these four witnesses, and not be permitted to tax their attendance against the defendant.

White, j. & Campbell, j.

said they were of opinion, that the expence of these four witnesses should follow the event of the suit, and be taxed, against the defendant. The rule respecting the introduction of witnesses to the credit of others, did not appear to fall entirely within the provision that no more than two witnesses to a single fact should be allowed. These witnesses gave testimony which appeared to be relevant. The jury were the proper judges of credibility, and whether they did or did not believe them, ought not to affect the matter of costs. 
      
       See 7 John 20. 5 Wil. Ed. Bac Ab 443. n.
     
      
       See 5 Wil. Ed. Bac Ab 443 n. 7 East 479. Peak's Cas. 59. Camp. NP. Rep. 33 124 190. 1 John. 124. Add. Rep. 124.
     
      
      Esp. NP 631.
     