
    ANDRY & AL. vs. FOY.
    Appeal from the court of the parish and city of New-Orleans's
    verauiaves be" boughtto^eth-sle i),ice>the sale will not be rescinded tor ber 'lessen any redilibiw-6 ry¿f interest even from the sun,fallowed* nquXt-ed by the judg men! only.
    The plaintiifs bought from the defendant, nine slaves, for Si0,500, payable in their note at one year. Six of them haviner successively ranaway, J they brought the present suit for the remission of the sale, alledging that the slaves were addicted to running away, in the knowledge of the defendant, prior to the sale. There was judgment for the rescission of the sale as to the six slaves, who ran away, and the defendant was condemned to the payment of 86500. Both parties appealed.
    
      Mazureau, for the defendant.
    The parish court erred, in rescindí- g the sale, as the defendant, by the act of sale, bound himself to warranty against the maladies, which give rise to the redhibitory action, and against all troubles of eviction : which was excluding all warranty in regard to moral defects.
    The defendant, having in his act of sale de-, dared the names of his vendors, the dates of their acts of sale, with the offices, in which they are to be found, the plaintiifs ought to impute, to their own negligence, their ignorance of the bad habits of the slaves, as they would have been informed 0f them, if they had taken the trouble to examine J these acts.
    The correspondence of the parties, before the sale, shews that the plaintiffs confined the responsibility of the defendant, with the regard to the running away of the slaves, to a period of fifteen days, during which he had them on trial.
    There is not any evidence on the record from which it may be fairly concluded, that the habit of running away existed in the slaves, before the sale to the present vendees.
    Admitting, that all these points may be determined against us, the judgment of the parish court is erroneous, on account of the extravagant sum at which the slaves, whose sale is decreed to be rescinded, are valued—it is also erroneous in refusing to the defendant a reasonable hire for these slaves, while they were with the plaintiffs, and lastly, in allowing to them interest on the sum awarded. This sum, being unliqui-dated till the judgment of the parish court, could not legally bear interest. This court held so in Pierce vs. Flower al. 5 Martin, 388.
    Moreau, for the plaintiffs.
    In the sale of slaves, the vendor’s warranty for corporal or moral defects, which give rise to the redhibitory action is always implied, and the silence of the parties in the present case, with regard to moral defects, cannot be considered as a waiver on the part of the plaintiffs, of the action which the law gives to vendees, if the slave be addicted to the habit of running away. Servus fugitivus vitiosus. The warranty, in such a case, is of the nature of the contract and will exist, notwithstanding the parties have been silent thereon. Code Civ. 356, art-65. Pothier, contrat de vente, n. 181.
    It is true the warranty, not being of the essence, but only of the nature of the contract, may be excluded. But the exclusion must either result from the formal expression of the intent of the parties, or necessarily result from the clauses of the contract. Part. 5,5, 66. Curia Philip. 321, n 28, and the vendor will be liable even, if the warranty be excluded, if he concealed the defect scienter, or otherwise acted mala fide. Macarty vs Prgneres, 2 Martin, 149, Code Civ. 357, art. 68, Pothier, contrat de vente, n. 229, Rodriguez's note, on ff 21, 1, 14.
    The defendant, therefore, is liable for the habit of running away of these six slaves, because the legal warranty was not excluded, and if it had been, because he did not act with good faith, having concealed this moral defect from the plaintiffs, to whom he was bound to declare it; That he was acquainted therewith, appears from the act of sale of W. Brant to him, by whom Lindor is sold, without any warranty for moral defects, a°d the acts of sale of M‘Claskey and Hopkins, by whom Horace, Anthony and Sandy are s°fd to him as runaway slaves. The registry of the jail shews, that these four slaves were confined for running away, as well as John and Isaac, while they were in the possession of the defendant. Farther, A. Abat, the broker, by whose intervention the purchase was effected has deposed that, according to the defendant’s inr structions, he offered them, to the plaintiffs, as good and well disposed slaves.
    If the defendant was bound to declare, as we have shewn, the habit of running away of those slaves, he cannot clear himself under the pretence that he gave the names of his vendors, the dates of, and the places in which his titles could be seen by the plaintiffs, especially as we have shewn that he instructed his broker to assure them, that the slaves were good and well disposed.
    The correspondence between the parties, to which the defendant’s counsel refers, shews only that some of the slaves having manifested some reluctance to go with the plaintiffs, they stipulate ed, that they should keep these for a fortnight on trial, and that should any of them runaway, during that time, the defendant should support the loss. The plaintiffs’ intention was to guard against the consequences of the purchase of slaves disposed to run away, but of whose habit to escape legal evidence might not be attainable, precaution, cannot be considered as a renunciation of the redhibitory action which the law gives to vendors. XhlS
    On our part we contend, that the parish court erred in decreeing a partial rescission of the sale only The slaves were sold as one entire gang for one price. It is in evidence, that the defendant, delaying the delivery of four of these nine slaves, and being pressed by the plaintiffs to deliver them, offered to keep them, under a deduction of 84500, and was answered that the plaintiffs would have all or none.
    Although it be true, as a general principle, that when several things are sold together, the saie is only to be rescinded as to the one which has a rehibitory defect, it is otherwise when it appears, that the vendee would not have bought the others without it.
    In the present case, the circumstance, of all the slaves having been purchased for one price, is evidence of an intention of the plaintiffs not to purchase them separately. “ What has been said, as to slaves sold as comedians, or the like, takes place when they have not been sold separately, but as constituting a gang, and a circumstance which causes this to be presumed is, that one price has b en given for the whole. There-Épre, Africanus sa) s, that when several things of the same kind, as several players or a troop of comedians, are sold, inquiry is to be made, whether a price was agreed upon for each, or whether one only for al!, and this will shew whether there was one only or several sales ; this will enable us to determine, whether the vendor is to be compelled to take a sick slave only or all. C 33, Afric. lib. 7, quasi. This agrees with what is said by Labeo: if you have sold several slaves, warranting the health of all, although all be not sick,, but one or more, you will be liable as to all on your warranty. L. 64, § 1, Pompon, lib. 17, cpist.” 1 Pothier, Pandecta, 21, 1, 2, sect. 5, j I, n. 65.
    Admitting, however, that the parish court was correct in rescinding the contract, as to the six slaves only, it has erred, in ascertaining the Sum, which the plaintiffs are entitled to recover. There is on the record a list of the slaves sold,, in the handwriting of the defendant, in which their respective qualifications and talents are specified, as well as sheir ages. From it, this court will perceive that the three slaves, whom the plaintiffs are compelled to keep, are the oldest and those who are represented in that list as the less valuable. Yet, the defendant is decreed to pay S6500, for the six youngest and most valuable that is to say, at the rate of S1083 per head, while he will receive for the three others, J340G0, that is to say, S 1333,33, a head.
    
      
      Mazureau, in reply.
    The sole circumstance, of a number of things of the same kind having been sold for one price, does not suffice to induce a court to conclude, that the intention of the ven-dee was not to acquire them individually. Pothier in his pandects, after the part of them which has been cited by the plaintiffs’ counsel, adds : this circumstance is not always sufficient to establish the presumption, that the parties intended to treat separately of the things sold, and not individually, for although these things were sold altogether and for one single price, they may have been considered and valued separately, and vice versa. It is possible that there should be but one sale, although the several things be bought each for its distinct price, and the sale will be rescind - ed as to all, for a defect in one of them : which is ordinarily the case as to a troop of slaves educated as comedians, a span of horses or of mules. In which cases one is of little use without the rest.
    
      Pothier, Pandectce, loco citato, l. 1, § 1.
    In the present case, the slaves sold were field hands, their value consisted in their strength, and the services of any one of them were quite independent from those of the rest or any of them. As a comedian cannot act alone, and a span of horses, well paired, are of much greater value, if possessed together, than if owned individually, the presumption that he who purchases comedians or a Span of horses, would not have siven the sumé • 0 price for each slave or horse, if he had not con-tempiated the additional value, which results from the connection or match.
    Even in regard to the slaves, who have been taught any of the handicraf trades, which are considered as useful on a plantation, as the trade of a carpenter, blacksmith, mason, or wheel right,' the value of such is not atall increased, from the circumstance of their being acquired together. He who possesses a carpenter, may procure a blacksmith or mason with facility, if he be in possession of the means. But he who is possessed of a horse, wiil not with the same facility, find the opportunity of procuring one that may match him in height, bulk, color, shape and speed: so at Rome where slaves were trained to scenic performances, a number of them trained together, and used to act the several parts of certain plays, suffered a great diminution in their value, when they were sold separately.
   Martin, J.

delivered the opinion of the court, after stating the pleadings and the evidence. It is true, the slaves were not sold separately and for distinct prices, and after the sale, the ven-dees refused to retain any of them, and rescind the sale for the others, but insisted on an entire compliance with, or an absolute rescission of the contract. These circumstances do not, however, appear to us sumcient to authorise the vendees in demanding the rescission of the sale of ail the slaves, on account of a redhibitory defect, in one or more of them. For, they did not constitute a whole, as a company of comedians or a span of horses, in which the value of each of the component parts, is increased by its union to the rest. It is true, after the sale, the vendees declared their willingness to annul it in toto, and refused to do so partially—a circumstance, which is presented to us as giving rise to the presumption, that they would not have agreed to the purchase of any number of these slaves, less than the whole. The presumption, however, appears to us too slight to be received as evidence : we therefore conclude, that the parish court did not err, in refusing to rescind the sale in toto.

The habit of running away is a redhibitory vice. Civ. Code, 358, art 79. A warranty against it is, therefore, of the nature of the contract of sale of slaves, i. e. it needs not to be expressed in the deed. Hence the silence of the vendor in this case, as to this warranty, does not prevent him from being bound thereto. Neither does it appear to us, that the circumstance of his having disclosed to his vendees the names of his own vendors, and referred, in his act of sale, to those of the latter, in any decree lessens his lia-^.j. J °

This warranty, however, not being of the es-ser.ce of .the contract, may be excluded by the agreement of the parties. But this ag> cement must be proven, and the exclusion must be a fair one, that is to say, the vendor must be ignorant of or disclose the existence of the vice. In the present case, it is clear, that the disposition of six of these slaves to run away was known to the vendor, and that he did not communicate it to the vendees. The understanding of the parties, that the slaves should remain on trial, during a fortnight, with the vendees, at the risk of the vendor, in case they ran away, does not enable us to conclude, that the intention of the parties was that, if after that period, they or any of them ran away, and the vendees could prove a previous habit of running away, they should not avail themselves of the legal warranty.

The existence of this habit in the six slaves, of whom the sale is rescinded by the judgment of the parish court, clearly appears from the evidence on the record, particularly the deposition of the jailor and the orders of the mayor.

The defendant was bound, at the inception of the suit, to reimburse the price of these slaves, but this price was not fixed by the parties and required to be liquidated: the parish court, there fore erred, in allowing interest from the date of the judicial, demand : but no hire can be allowed,

Both jeo« ties complain of the valuation made in the parish court, the vendor thinking it extra-vacant and the vendees insufficient. Perhaps this is Hie best evidence of its correctness. It does not appear to us so materially incorrect as to authorise our interference.

It is. therefore, ordered, adjudged and decreed, that the judgment of the parish court be annulled, avoided and reversed, and this court proceeding to render such a judgment, as in its opinion, ought to have been rendered in the parish court, it is ordered, adjudged and decreed, that the sale of the r.egroes Lindor, Tony, Sunday, Isa;?/;, Horace and Boucaud, be rescinded and made null and void, and that the plaintiffs do recover from the defendant the sum of six thou* sand five hundred dollars with costs in the parish court, and that the plaintiffs pay costs in this court on both appeals.

See the same case, 7 Martin, 38.  