This suit was instituted in the Sixth District Court, to rescind the sale of a slave and ‘recover his price, with costs incurred, in consequence of a redhibitory defect, with which the said slave was alleged to have been affected previously to and at the time of the sale, and that, too, to the knowledge of the vendor, the defendant, who fraudulently concealed it from the vendee, the plaintiff.
She avers that, had she known the existence of the defect, she would not have bought the slave.
The general issue was pleaded and a special denial of the fraud alleged.
It is a textual provision of the law, and not an open question in the jurisprudence of this State, that “The exclusion of warranty in an act of sale cannot avail the vendor when it is fraudulently made, as he is bound to disclose redhibitory vices and defects not apparent in the things sold, when he knows of their existence, and the vendee is not precluded by such exclusion from showing that, at and previous to the time of sale, the vendor was aware of the existence of redhibitory defects and fraudulently concealed them. See C. C. 2449 and 2526. 2480 C. C. Hannibal v. Faulk, 14 659. Ogden v. Michel and husband, 37 ; 4 R. 156.
In the act of sale, from Brown to Mrs. Huntington, is the following clause: “ Said slave is hereby guaranteed by said vendor in title only, and not against the vices, maladies or ‘defects, prescribed by law, of which refusal to guarantee said slave against said vices, maladies and defects, said purchaser hereby takes cognizance and renounces all recourse therefor hereafter.”
In the absence of fraudulent concealment by Brown, of the redhibitory malady in the slave, at the time of the sale, this clause would have protected him; but he cannot, if the fraud be shown, escape from the provision of the 2480 Article of the Civil Code, which reads thus: “Although it be agreed that the seller is not subject to any warrantry, he is, *50however, accountable for- whatever results from his personal act, and any contrary stipulation is void.” The reticence by tlio vendor of a redhi-bitory malady in the slave, which good faith binds him to disclose to his vendee, would be as fraudulent in the eye of the law as a false statement in regard to liis physical condition. 1
The ease of Faulk v. Hough, 14 La. Rep. 660, enunciates the true principle by which this and all kindred cases must be governed.
That the slave, at and previous to the time of sale, had a serious if not an incurable disease, is incontestably provotl by the physicians who testified on the trial of the case; and that the vendor knew of its existence, and that the condition of the slave would soon render him almost worthless, is not less manifest from the testimony of Dr. Bensadon, who says he was taken by Brown, to be sold, out of the Touro Infirmary, wherein he had been from August, 1859, till the fith or 8th of February, under medical treatment for a progressive disease. Seo 2490 ó. C.
The fact that Dr. Bensadon offered only .$309 for tho slave, for hospital purposes, shows that defendant was aware that lie was physically unsound; and, indeed, it is to be presumed that, as the slave was under medical treatment in an infirmary during six months, the defendant must have known what was the matter with him.
There is no error in the judgment of the lower Court, and it is therefore ordered, adjudged and decreed that it be. affirmed, with costs.
Howell, «T., recused.