Feagin v. Beasley , 23 Ga. 17 ( 1857 )

By the Court. —

Lumpkin, J.

delivering the opinion.

[1.] Usually, the price agreed upon by the parties is the best evidence of the value of property at the time. Better, certainly, than the opinions and guessing of others. There may be exceptional cases. If the negro then in this case was wholly worthless, we see nothing in the testimony to take .this case out of the rale. If the negro was worth something, then the difference between the price paid and the value of the negro in his diseased condition is the measure of damaages. Whether any thing by way of expense should be superadded, is a question not very well settled by authority.

[2.] Perhaps an extraordinary outlay, as for medical attendance, rendered necessary.by reason of the unsoundness of the property, might come in, especially if the services were needed before notice, or an offer to rescind could be made by the buyer.

To entitle the purchaser for any additional amounts, as for the keep of the negro, he should offer to rescind, and thus give the seller an opportunity of deciding whether he will take back the property. Of course these remarks apply to a case of a simple breach of warranty, unaccompanied with fraud.

[3.] We concur with the Court that he was wrong in ruling out the depositions of the witnesses mentioned in the fourth ground taken for a new trial, whose names are iIlegible in in the record, 1st: Because they were properly executed and returned, the abbreviations in the names of the commissioners being sufficient •, and 2d, Because, by the Act of 1854, all objections except as to the relevancy of the interrogatories

must be both taken an d determined before the case is submitted to the jury.

The provisions oí the Act were equally violated in ruling out the testimony of Dr. Mitchell.

[4.] The representations of the negro as to his symptoms, made during his medical examination, are clearly admissible, and have been repeatedly so held by this and other Courts, We think the Court was right in ruling out the answer of Wm. B. Jones to the eighth direct interrogatory. He gave his opinion merely, without stating the facts upon which it was founded.

We express no opinion upon the evidence, as the cause is to be re-heard. Upon the whole, we affirm the judgment of the Court below in correcting its own errors and awarding a new trial.

Judgment affirmed.