
    Richard Smith v. John Rice.
    Columbia,
    June, 1830.
    An agent to sell has no authority to rescind the sale, after the contract has be eh completed. His agency terminates with the sale, and the delivery of the proceeds to his principal.
    A contract of sale cannot be rescinded for a breach of the implied warranty of soundness, unless the defect be such as materially to affect the value of the thing sold. A disease, in a slave, which is easily removed by medical treatment, is not such a defect, as will intitle the vendee to rescind the sale.
    There is no implied warranty of value in sales, if there be no unsoundness.
    
    Tried before Mr. Justice Evans, at Lexington, Spring Term, 1830.
    This was an action of assumpsit upon a promissory note, given in part payment for a slave, sold by the plaintiff to the defendant. Defence, failure of consideration.
    The slave, who was a negro woman, had been sent for sale to Col. Lee, who employed-- one Micajah Martin to efiect the’ sale ; and the latter sold her to the defendant, taking in payment a note for $175, which is the subject of the present suit, another note to himself for $25, and 600 acres of laud, worth $100. The note for $175, was delivered to the plaintiff, and the defendant took possession of the slave. Shortly afterwards she was discovered to be diseased with gonorrhea, and was placed in the hands of a physician for cure. Three or four months subsequently, an arrangement was made between the defendant and Martin, under which the latter gave up the note for $25, and the land, and received the slave back from the defendant. The note for $175, remained with the plaintiff, but Martin told the defendant, that he did not believe the plaintiff would enforce it; and the defendant said he would run the risk of having to pay it. There was no evidence th.it the plaintiff directly authorized Martin to rescind the sale, or that be had subsequently confirmed the rescission, by accepting the slave, or otherwse. Several witnesses testified that the slave was old, ana of little, or no value. The physician who attended her testified, that her disorder was easily removed bv medicine.
    It was contended for the defendant, that he was intitled to rescind the contract for breach of the implied warranty: and that, in fact, it had been rescinded.
    The presiding Judge charged, that a sale, for a full price, implied, that the article sold was sound, but not that it .was worth the price agreed to be paid for it. That, if the unsoundness rendered the property valueless ; or the object of the purchaser was wholly defeated by it; then a jury might rescind the contract altogether by finding for the defendant: but if it was merely lessened in value, then they should only make an abatement in the price. That it did not seem, that the negro in question was otherwise diseased, than by a disorder, which, the physician, who attended her, testified, was perfectly within the control of medicine, and did not permanently affect her value ; and if the jury agreed with-him, they ought to find a verdict for the plaintiff, for the amount of the note, deducting so much, as the value of the slave was lessened by the disease, which, according to the opinion of the physician, was the amount of his bill. His Honor further charged, that the contract was not rescinded by the arrangement with Martin. The evidence was, that the defendant knew, that the plaintiff had the note in his possession, and he agreed to run the risk of paying it. Besides, Martin5!* a8'ei,c.v t0 s'"h, terminated with the safe and the delivery of the note to the plaintiff; so that even if the contract had been agreed to be rescinded, Martin had no power to bind the plaintiff by such an agreement.
    The jury, however, found a general verdict for the defendant, which the plaintiff now moved tcset aside, as contrary to law and evidence. „
    Prbston for the motion.
   O’Neall, J.

.delivered the opinion of the Court.

In this case, the ground of the motion for a new trial, involve» two inquiries : 1st. Whether the agent, Martin, had the right to rescind the contract. 2d. Whether the disease was such a de-fecl, as would authorize the jury lo find for the defendant.

Upon the first, I have little to add to what was said by the presiding .Judge in hi's charge to the jury. Martin was the agent of the plaintiff to effect a sale ; but after he had sold and delivered the defendant’s note to the plaintiff, his agency ceas; d. To bind his principal, his act ought to have been done during his agency, and within the authority which it conferred on him.' If he acted without, or exceeded the power conferred on him by his principal, it was not binding on the plaiiitifE The defendant, for redress for the unauthorized act of Martin, must look to him. If it had appeared, that Martin had restored the possession of the negro to the plaintiff, and that he had accepted her, or had in any way authorized the rescission of the contract, or affirmed it after it was done, I should have held him bound by it. But there was no such evidence, and Martin must be held to have acted of his own mere motion, unless the contrary appear.

2d. In order t.o rescind a contract on the ground of failure of consideration, arising out of a breach of the implied warranty, in sales of personal property, “ that a sound price warrants a sound commodity,” it ought to appear, that at the time of the sale, the property sold was subject to some permanent physical defect, calculated materially to affect its value. If the defect is a slight one, not materially diminishing the value of the property, it is no ground of rescission. In the case before us, the disease was one easily removed by medical treatment, and only diminished the value of the property to the amount of the physician’s bill. It was, therefore, not such a permanent phy-aical defect, as would authorize the jury .to rescind the contract. The verdict is, therefore, against law, and evidence, and the motion for a new trial is granted.

Johnson, J. and Colcock, J. concurred.

Motion granted.  