
    
      Charles Simmons vs. J. L. & J. W. Anderson, Adm’rs.
    
    Defendants offered, at public auction, a negro for salo on credit — note and approved, surety to be given by the purchaser. The terms were in writing. Plaintiff was the highest and last bidder, and his name was so entered. Plaintiff tendered a note with a responsible surety, but defendants refused to accept it and deliver the negro : — Held, that the contract of sale was not within the statute of frauds; and that plaintiff, by his tender of the note, had acquired such property with right of possession, as enabled him to maintain trover against the defendants for their refusal to deliver the negro.
    The purchaser of a chattel at auction, upon offering to comply with the terms of the sale may maintain trover against the vendor for refusing to deliver the chattel.
    
      Before Withers, J., at Laurens, Spring Term, 1853.
    The report of his Honor, the presiding Judge, is as follows:
    “ The defendants, being administrators of William Anderson’s estate, proceeded, on Thursday, the 20th day of November, 1851, to sell the personal property of the estate of the deceased.
    “ The plaintiff was the highest and last bidder, at a public auction, for a slave, Mark, at the sum of $758. Two persons were acting as clerks, and by direction of the crier of the sale, they entered the name of the plaintiff as purchaser, the price and the name of the negro, in the account of sales. In the account of sales returned to the Ordinary’s office, the name of James Anderson appeared as purchaser of Mark.
    “On Monday morning next succeeding the sale, plaintiff offered the note of himself and Wm. Graves, under seal, for $758, bearing daté 20th November, 1851, payable at twelve months, interest from date, in favor of defendants as administrators. It was drawn by one of the defendants, as to the body of it, but when, whether torn out of a book in which many blank notes had been drawn, and whether delivered to ‘the plaintiff on the Saturday before the said Monday morning, or subsequently, was not ascertainable from the testimony. The defendants refused to take the note and deliver the negro — demanding another good name, according to the evidence, and perhaps, (as one witness said,) objecting to the fact that there was no witness to the execution.
    “ The foregoing is enough to explain the ground on which the motion for non-suit was made and pressed. The action was trover.
    
    
      “ It was insisted that such action could not lie, no matter whether the defendants ought or not to have accepted the note, and delivered the negro; that the proper form of action was for breach of contract to deliver — and no such legal right of property, or to the possession, existed, as would maintain this action.
    “ I was quite inclined to that opinion, but I remembered that our books presented cases of trover standing on narrow foundation, as to the doctrine in question (though none were cited); and as we had travelled through the great mass of testimony, I conceived it prudent to take the opinion of the jury on the en-quiry, whether the plaintiff had offered a note which was, in good faith, a full compliance with the terms of the auction, and if so, to say to them, that the plaintiff had vindicated his right of possession, and his action might stand on that. Nothing was said about the statute of frauds, except in argument to the jury, by one of defendants’ counsel. The defendants did not object, to parol testimony, as to the contents of memoranda, or entries, by the clerks, in the account of sales; and the written notice of the terms, announced at the opening of the auction, was adduced on the part of the defendants themselves, and proved to have been a part of the transaction. I thought, and so told the jury, that thus any objection derived from the statute of frauds, had been superseded by the defendants themselves. The terms of auction were: ‘ All sums over $5, on a credit of twelve months, interest from day of sale — no property to be delivered until the terms of the sale are complied with, which will be note and approved surety.'1
    
    ' “ On the part of plaintiff, it was in evidence that at the beginning of the sale, one of the defendants said, that the negroes would not be delivered until the corn and other property had been. A person present observed, it may be six months before the corn is delivered; say how many days 1 The other replied, in three or four days. The person said, we will give you five days, which will be one day of grace. The defendant said, ‘ well,’ and went on. That Graves, (the surety on the note tendered,) on Saturday, the second day after the sale, requested Dr. Anderson, a defendant, to give plaintiff a blank note, that he might proceed to the Court House, and procure the name of John Simmons as a surety, and Graves said he would sign it also, and told plaintiff to be sure and have a witness ; that Graves had gone with plaintiff on Saturday to try to make a compromise. Mark (the negro) was then engaged about the corn. That Graves was worth between $ 15 and $20,000, and was quite responsible for a much larger sum than that in question; that he had been accepted as surety on the note of one Neely at this same sale; that plaintiff owned the wife and children of Mark, and the latter was worth now from $800 to $900 — perhaps $1,000; that James Anderson had set up a claim to Mark on the evening .of the day next after the sale, and when his note for other purchases was taken, the price of Mark, as bid by the plaintiff, was included in it, and defendants said, James Anderson (who was their relative) had taken the negro; that on Monday morning, the fourth day after the sale, plaintiff appeared, at an early hour, where persons were engaged in receiving cotton seed, and asked Dr. Anderson if he would take Squire Graves; Anderson said he would ; and, being asked if he would go and see him sign, replied that he reckoned any one there would know it. Very soon (Graves lived near) plaintiff returned with the note. The witness who stated this interview, said Dr. Jones was present, and he would say heard it — but Dr. Jones did not hear it; nor did one or two other persons, who said they were in a condition to hear such conversation if it had occurred.
    “For the defence it appeared in evidence, that plaintiff had applied to a son of Graves, probably on Friday, the day next succeeding the sale, to stand as his surety; he refused, and so did Graves, his father, who said he was getting too old for that; that in a conversation about it, Graves required Simmons, and the latter agreed that, for counter security, he would mortgage Mark to him, and add to that a confession for as much more; that the plaintiff had taken counsel, before Monday morning, but the advice he got did not appear; that after Monday, plaintiff said to John (one of the defendants) if he did not think he and the Doctor were in a bad box — that he wished he (John) was out of it, and he or his brother might have Mark for $5, but, as for the Doctor, he could not have him; that when plaintiff presented his note, on Monday morning, Dr. Anderson refused to take it, because it had no attesting witness, as he had required on Saturday.
    “Such is the substance of the evidence before the jury. In the argument, it was asserted, and not controverted, that the plaintiff was not responsible in money affairs. The case was copiously argued before the jury, and I brought all the matters of fact and argument to their attention in a charge, not complained of in the grounds of appeal.
    “ They found for the plaintiff #204.58.”
    The defendants appealed, and now renewed their motion for a non-suit on the grounds:
    1. Because the plaintiff neither proved a title to the slave sued for, nor a right to the possession of the said slave, and the action of trover did not lie.
    
      2. Because the alleged sale of the slave was within the statute of frauds, and void.
    Failing in that motion, they then moved for a new trial, on the same grounds, and the additional following grounds:
    1. Because the plaintiff did not comply with the terms of the alleged sale, had no right to the slave in question, and was not entitled to recover any damages, much less the amount found by the jury.
    2. Because the verdict of the jury was contrary to law and without evidence.
    Sullivan, for appellant,
    cited Meadows vs. Meadows, 3 McC. 458; 1 Ch. PI. 171; Gordon vs. Harper, 7 T. 11. 9.
    
      Williams, Young, contra,
    cited Coles vs. Trecothick, 9 Yes. 251; Chit, on Con. 374,404; Holcombe vs. Townsend, 1 Hill, 399; Entz vs. Mills & Beach, 1 McM. 453; Cathcart vs. Keirni-ghan, 5 Strob. 129; 2 Kent, 491; 1 Ch. PI. 152; Bloxam vs. Saunders, 10 Eng. C. L. R. 477.
   The opinion of the Court was delivered by

Whitner, J.

The question first presented is, whether the action of trover could be maintained under the circumstances of this case. The facts have been settled by the verdict.

This was a sale at auction, and the terms of the statute of frauds were sufficiently complied with by the memoranda then made. The name of the purchaser, the price and name of the slave, and the terms of sale announced at the opening of the auction, each in writing, were quite sufficient.

The plaintiff being the highest and last bidder, and so entered, the bargain was thus struck, and the purchaser acquired a property in the slave, though his title was inchoate only. By the terms of the contract, and so it would have been if nothing had been specified, the vendor had a right to retain possession until payment of the price or compliance with the terms of sale by the vendee. As a consequence, the right of possession in the vendee would not pass until such compliance or its equivalent. Chit, on Con. 407, 442. In this case, there was neither actual delivery of the chattel, nor was there actual payment of the price. It was a sale on credit, and the purchase money was to be secured by note and approved surety. The testimony discloses that the time for complying with the terms was extended, and within that time a note, with surety, was tendered by the plaintiff to the defendants. At sales for cash, the purchaser cannot sue for the non-delivery until the price be paid or tendered by him, unless the tender be unnecessary by the vendor's admission that it would be fruitless. Chit, on Con. 442.

The enquiries whether a note was tendered, and within the time, and such a note as was within the terms, have each been answered favorably to the plaintiff by the verdict of the jury, and who, we are informed by the Circuit Judge, were specially charged on that subject, and in such way, it would seem, as to furnish no ground of complaint.

The tender of the price, if for cash, or the note on such terms as here, is all the purchaser can do. He could not compel their acceptance, and having done all that he could, and all that the seller would permit to be done, the property passed. 2 Green. Ev. 638. A right of action having accrued, Was trover, however, the proper form? Another might well, and perhaps better, have been adopted, because freer from embarrassment in reference to the question of damages; but upon authority, we feel constrained to sustain this action. Property in the chattel, general and absolute, or special, with a right to immediate possession, are indispensable. Though a purchaser, for ready money, acquires the right to the property on sale, yet he acquires no right to the possession, until he either pays or tenders the price, and until such time he cannot maintain trover. Browne on Actions at Law, and note, 35 Law Lib. 309 (432).

When a bargain for the sale of goods is complete, the property is in the vendee, and, therefore, if upon a sale the vendor refuse to deliver, the vendee, on tendering the stipulated payment, may maintain trover against the vendor. Ross on Vendors, 12 Law Lib. 368.

On the subject of damages, the defendants have had a hard measure dealt to them. We cannot say it was unauthorized by the proof. This being peculiarly within the province of the jury, this Court cannot perceive a just ground on which to send this case back.

The motions for non-suit and new trial are dismissed.

O’Neall, Wardlaw, Frost, Withers and Glover, JJ., concurred.

Motion dismissed.  