Osborn v. Nicholson
80 U.S. 654 (1871)

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U.S. Supreme Court

Osborn v. Nicholson, 80 U.S. 13 Wall. 654 654 (1871)

Osborn v. Nicholson

80 U.S. (13 Wall.) 654

I

N ERROR TO THE CIRCUIT COURT

FOR THE DISTRICT OF ARKANSAS

Syllabus

A person in Arkansas, one of the late slave-holding states, for a valuable consideration, passed in March, 1861, before the rebellion had broken out, sold a negro slave which he then had, warranting "the said negro to be a slave for life, and also warranting the title to him clear and perfect." The Thirteenth Amendment to the Constitution, made subsequently (A.D. 1865), ordained that "neither slavery nor involuntary servitude . . . shall exist within the United States or any place subject to their jurisdiction." Held that negro slavery having been recognized as lawful at the time when and the place where the contract was made, and the contract

Page 80 U. S. 655

having been one which at the time when it was made could have been enforced in the courts of every state of the Union and in the courts of every civilized country elsewhere, the right to sue upon it was not to be considered as taken away by the Thirteenth Amendment above quoted, and passed only after rights under the contract had become vested, destruction of vested rights by implication never being to be presumed.

The case was argued on both sides interestingly and with ability and learning.

MR. JUSTICE SWAYNE stated the case, and delivered the opinion of the Court.

The plaintiff in error brought this suit on the 10th of February, 1869, in that court, and declared upon a promissory note made to him by the defendants in error for $1,300, dated March 26, A.D. 1861, and payable on the 26th day of December following, with interest at the rate of ten percent from date. The defendants pleaded that the instrument sued upon was given in consideration of the conveyance of a certain negro slave for life, and none other, and that at the time of the making of the instrument, the plaintiff, by his authorized agent, executed to the defendant a bill of sale, as follows:

"March 20, 1861"

"For the consideration of $1,300, I hereby transfer all the right, title, and interest I have to a negro boy named Albert, aged about twenty-three years. I warrant said negro to be sound in body and mind, and a slave for life, and I also warrant the title to said boy clear and perfect."

And that the said negro soon thereafter, to-wit on the 1st day of January, 1862, was liberated by the United States government, the said slave being then alive, and that the plaintiff ought not therefore to recover. The plaintiff demurred. The court overruled the demurrer, and the plaintiff

Page 80 U. S. 656

electing to stand by it, the court gave judgment for the defendants. This writ of error has brought the case here for review.

The question presented for our determination is whether the court erred in overruling the demurrer, or in other words whether the facts pleaded were sufficient to bar the action.

We lay out of view in limine the constitution of Arkansas of 1868, which annuls all contracts for the purchase or sale of slaves and declares that no court of the State should take cognizance of any suit founded on such a contract and that nothing should ever be collected upon any judgment or decree which had been or should thereafter be "rendered upon any such contract or obligation." It is sufficient to remark that as to all prior transactions, the constitution is in each of the particulars specified clearly in conflict with that clause of the Constitution of the United States, which ordains that "no State shall" . . . "pass any law impairing the obligation of contracts." [Footnote 1] Nor do we deem it necessary to discuss the validity of the contract here in question when it was entered into. Being valid when and where it was made, it was so everywhere. With certain qualifications not necessary to be considered in this case, this is the rule of the law of nations. Judge Story says:

"The rule is founded not merely on the convenience, but on the necessity of nations, for otherwise it would be impracticable for them to carry on an extensive intercourse and commerce with each other. [Footnote 2]"

It may be safely asserted that this contract when made could have been enforced in the courts of every state of the Union and in the courts of every civilized country elsewhere. In the celebrated case of Somerset, Lord Mansfield said:

"A contract for the sale of a slave is good here; the

Page 80 U. S. 6657

sale is a matter to which the law properly and readily attaches, and will maintain the price according to the agreement. But here the person of the slave himself is immediately the object of inquiry, which makes a very material difference. [Footnote 3]"

Nor is there any question as to an implied warranty, of title or otherwise. There being an express warranty, that must be taken to contain the entire contract on the part of the seller. This warranty embraces four points: that the slave was sound in body, that he was sound in mind, that he was a slave for life, and that the seller's title was perfect.

It is not averred or claimed that the warranty was false when it was given in either of these particulars. The title to the slave passed at that time, and if the warranty were true then, no breach could be wrought by any after event. Let it be supposed that subsequently, a lesion of the brain of the slave occurred and that permanent insanity ensued, or that, from subsequent disease, he became a cripple for life or died, or that, by the subsequent exercise of the power of eminent domain, the state appropriated his ownership and possession to herself, can there be a doubt that neither of these things would have involved any liability on the part of the seller? He was not a perpetual assurer of soundness of mind, health of body, or continuity of title. A change of the ownership and possession of real estate by the process of eminent domain is not a violation of the covenant for quiet enjoyment. [Footnote 4] Nor is it such an eviction as will support an action for a breach of the covenant of general warranty. In Dobbins v. Brown, [Footnote 5] it was said by the court:

"It will scarcely be thought that a covenant of warranty extends to the state in the exercise of its eminent domain. Like any

Page 80 U. S. 658

other covenant it must be restrained to what was supposed to be the matter in view. No grantor who warrants the possession dreams that he covenants against the entry of the state to make a railroad or a canal, nor would it be a sound interpretation of the contract that would make him liable for it. An explicit covenant against all the world would bind him; but the law is not so unreasonable as to imply it."

In Bailey v. Miltenberger, [Footnote 6] it was said:

"It has never been supposed that the vendor or vendee contemplated a warranty against the exercise of this power whenever the public good or convenience might require it."

These remarks are strikingly apposite to the point here under consideration. As regards the principle involved, we see nothing to distinguish those cases from the one before us. In all of them, the property was lost to the owner by the paramount act of the state, which neither party anticipated, and in regard to which the contract was silent. Emancipation and the eminent domain work the same result as regards the title and possession of the owner. Both are put an end to. Why should the seller be liable in one case and not in the other? We can see no foundation in reason or principle for such a claim.

It was formerly held that there could be no warranty against a future event. It is now well settled that the law is otherwise. [Footnote 7] The buyer might have guarded against his loss by a guaranty against the event which has caused it. We are asked, in effect, to interpolate such a stipulation and to enforce it as if such were the agreement of the parties. This we have no power to do. Our duty is not to make contracts for the parties, but to administer them as we find them. Parties must take the consequences, both of what is stipulated and of what is admitted. We can neither detract from one nor supply the other. [Footnote 8]

Where an article is on sale in the market, and there is no fraud on the part of the seller, and the buyer gets what he

Page 80 U. S. 659

intended to buy, he is liable for the purchase price, though the article turns out to be worthless. Thus, where certain railroad scrip had been openly sold in London for several months, but was subsequently repudiated by the directors of the company as having been signed and issued by the secretary without authority, it was held that the buyer could not set up as a defense a failure of consideration. [Footnote 9] These cases go further than it is necessary for us to go in order to sustain the liability of the defendants upon the contract here in question. There, as in this case, the buyer might have protected himself by a proper warranty, but had failed to do so.

But we think the exact point here under consideration was settled by the Court of Queen's Bench in Mittelholzer v. Fullarton. [Footnote 10] That case, so far as it is necessary to state it, was this:

The contract was made at Burbice, in British Guiana. The plaintiff sold to the defendant the services of one hundred and fifty-three apprentice laborers who had been slaves, for

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