
    
      Amon Lindsey, administrator, vs. Avery Bland.
    
    1. Defendant purchased two negroes at the estate sale of plaintiff’s intestate. The contract, as proved, was that a note was to be given for the price, payable at a future time. The property went into defendant’s possession immediately, but the note was not given; and a few months after the sale, when it was applied for by the administrator, the defendant refused it, alleging that the negroes were unsound. In an action brought for the price, the defence, as to one of the negroes, failed entirely, and upon the testimony adduced, the jury found a verdict for the whole amount of the sale with interest. The declaration contained nothing more than a count for negroes sold and delivered, there being no count for interest, nor any setting out the promise and refusal to give the note. Plaintiff entitled to retain his verdict as well for the interest () as the price. See Marshall vs. Poole, 13 East, 97; Stack vs. Lowell, 3 Taunton, 157.
    
      Before Evans, J, at Edgefield, Fall Term, 1843.
    The defendant purchased, at the sale of Lindsey’s estate, of which the plaintiff was administrator, two negroes, John, at the price of 610 dollars, Allen, for 780 dollars, and three peacocks, for one dollar and fifty cents, making in all $1391 50. The terms were, twelve months credit, the purchaser to give note; the sale was made about the 15th of December, 1841. The negroes went into defendant’s possession immediately, but from some cause he did not give a note. In March, the plaintiff applied for a note, which defendant refused to give, alleging that both of the negroes were unsound. This action was brought to recover the price. Defendant set up as a defence, that John had hernia, and Allen, liver disease. In relation to the lat.ter, the defence wholly failed, and the evidence in relation to him is omitted, as nothing is said about him in the notice. It was clearly proved that John has now what is called an irreducible hernia. Dr. Burt examined him a month or two before the trial; he described him as a likely and' vigorous man, whose general health is unaffected by the disease. He thought it existed prior to the sale. One afflicted with this disease, is considerably lessened in value; he cannot do very heavy work, or take rough exercise; would think the value diminished one half; if a truss be early applied, the disease does but little injury. A great many witnesses were examined, who knew John well for many years; had seen him at work on the road and at log rollings, who spoke of him as a very strong able bodied’ and willing hand; and who were entirely ignorant that he had such disease. Other witnesses had heard of it, and some had observed an apparent enlargement before the sale. One Colvin, who was the defendant’s overseer, said he looked large before, when he first came home; he examined him not long after, and found he was ruptured; it was as large as Dr. Burt described it to be now. According to this man’s evidence, John had been complaining ever since defendant got him, and he had not been put to hard labor, because he considered him unable to perform it.
    On the 26th or 27th December, about ten or twelve days after Lindsey’s sale, the negroes of Weaver’s estate were sold; they brought, in general, higher prices than at Lindsey’s sale. Colvin said Bland knew of the disease Jack had before the sale. On the day of Weaver’s sale, one Cogburn offered to buy Jack at an advance of thirty dollars, to be paid in two notes of one Rinehart, a solvent man. Bland refused to take less than $700, and said he could get it in two hours. Cogburn said he had heard, after Lindsey’s sale, that Jack was ruptured, and he had examined Jack about it, and was so satisfied that it did not lessen his value, that he was willing to give Rinehart’s note for 740 dollars, and would as soon have given his own note. After Bland refused, Cogburn told him he had heard John was ruptured, to which no reply was made. The witness thought John could do as much now as before the sale. .
    Another witness, David Crane, said that in February, 1842, he had a conversation with Bland, in which Bland said he was sorry he had gone to any of the sales, as he could now buy three negroes for the price he was to give for these two. He complained of Allen’s having gone from his plantation in bad weather without leave, but said nothing of any other objection to them. He regretted that he had bought them on account of the price. Between January and March, there had been a great falling off in the price of negroes.
    The case was submitted to the jury, on the questions whether John was diseased at the sale, and if so, how much was his value diminished. They found a verdict for the plaintiff, for the whole amount of the sale, with interest, although there was no count for interest. The presiding Judge was of opinion that the negro was ruptured at the lime of sale, but it was probably so slightly, that if attention had been paid to it immediately after it was known, his value would have been but very little impaired, if any. No means of cure were used, and no physician consulted about it, until a month or two before the trial.
    The defendant appealed from the verdict of the jury, and moved for a new trial, on the grounds :
    1. Because the negro John, being afflicted at and before the sale, with incurable hernia, which materially impaired his value, and that being unknown to the purchaser at the time of the sale, the jury erred in not allowing a reasonable abatement of the price bid for him.
    
      2. Because the jury erred in giving interest.
    
      Bauskett, for the motion,
    insisted that a reduction should1 have-been allowed by the jury under the proof, and that interest should not have been given. Cited, on the second ground of appeal, Knight vs. Mitchell, 2 Treadway’s Con. Rep. 668 ; Far-rand vs. Bouchelle, Harp. 83 ; Goddard vs. Buloio, 1 Nott and McCord, 45 ; 3 McCord, 499 ; Harp. 393; Id. 219.
    
      Griffin, contra,
    stopped by the court, on the first ground. On the second, dm cited Chitty on Contracts, 505: 13 East, 498; 4 Taunton, 298; Cheves Rep. 61,
    
      
      
        S. P. Porter vs. Palsgrove, 3 Camp. 472.
    
   Curia, per

Evans, J.

As to the questions arising out of the facts of this case, this court does not perceive any reason for departing from its established rule of leaving undisturbed the decision of the jury. Whether the plaintiff is entitled to retain his verdict for the interest, being a question at law, it is necessary to consider. The contract as proved was, that a note was to be given for the price of the negroes, payable at a future time, if the note had been given, the plaintiff would clearly have been entitled to recover the interest which the verdict allows him. So, also, if there had been a count for interest, or if the declaration had been specially on the contract to pay for the negroes with a security which would bear interest. My understanding of the law, when the case was tried, was, that interest was not recoverable, unless the contract set out was one which bore interest, or there was a count on the promise to pay interest. The argument in this court, and the authorities cited, have satisfied me that this impression was wrong. As I have before said, if there had been a count in the declaration setting out the promise and refusal to give the note, all the authorities are that interest is recoverable, because, otherwise, the defendant would derive an actual benefit from his refusal to perform his contract.

But I do not understand the declaration in this case to contain any thing more than a count for negroes sold and delivered, and the question is, whether on such a count interest is recoverable. In the case of Marshall vs. Poole, 13 East, 97, Lord Ellenborough seemed to think that the interest was a part of the price agreed to be paid, and was, therefore, recoverable on the common count for goods sold; and in the case of Stock vs Lowell, 3d Taunton, 157, where, on the common count, the jury allowed the interest, the court refused to grant a new trial. Both these cases are like the present, a sale of goods, to be paid for in a security which, when due, would*bear interest. They are decisive of this case, and the motion for a new trial is refused.

O’Neall, Butler, Wardlaw and Richardson, JJ. concurred.  