
    *Graham v. Bardin.
    January Term, 1855,
    Richmond.
    A vendee of a slave, sold with warranty of soundness, tenders the slave back to the vendor, on discovering that he is unsound. The vendor refuses to receive him, and the vendee brings an action to recover damages for the breach of warranty. Held:
    i. Warranty — Soundness of Slave — Rescission—Sale at Auction. — He is entitled to recover the damages he has suffered, though he sold the slave, after the tender, at public auction, and received the proceeds to his own use; without having given notice to the vendor of the time and place of sale.
    . 2. Pleading — Special Plea — General Issue Joined. — A special plea tendered six years after general issue joined in the case, should be received, if it appear that the defendant was a non-resident of the State for the last two of the six years, and was ignorant of the facts stated in the plea, until shortly before he tendered it, and that he was then for the first time informed of their value, in a conversation with his counsel.
    In April, 1841, an action of covenant was brought by Benjamin F. Graham against William Bardin for breach of warranty, in respect to the soundness of a negro conveyed to the former by the latter by bill of sale, under seal, dated October 7th, 1840. At the next term of the court, (June, 1841,) the defendant entered the plea of “covenants performed, and the plaintiff joined issue thereupon. ” From this time nothing was done in the case, except to continue it from term to term, to require new bail, and to take depositions, until June, 1847, when (after the case had been continued until the next term), the defendant tendered a special plea, alleging that at the time the bill of sale was signed by him, it was “in blank as to names, dates, and sums, and in all respects, except the words which now appear in print on the face of said paper; and there was written above his name and seal no writing obligatory whatsoever;” that it was filled up in his absence and without his authority, and so that the said supposed writing ^'obligatory was not his deed. The counsel for the plaintiff objected to the filing of this plea, and the case was continued until the next term, (November,) when the counsel for the defendant submitted a statement of facts in regard to the plea, which was admitted without affidavit, and isas follows: “When the plea heretofore pleaded, was filed, the facts set forth in the special plea of non est factum aforesaid, were not known to any of the counsel engaged in the cause for the defendant, and from the want of knowledge on the part of the defendant, of the value and importance of the facts stated in the plea, they were never communicated to his counsel, until the term at which the plea was tendered, and then were drawn out from the said defendant accidentally, by interrogatories which were propounded to him by one of his counsel, in the course of a conference with him touching this case; and that as soon as they were so communicated to the counsel, they were put in the form of the plea, which was sworn to by the defendant, and tendered as aforesaid, at the last term of the court, &c.” It was further stated, “that the defendant was at the time of the communication to his counsel above mentioned, and had been for some twelve or eighteen months before, (until which time he was a resident of the city of Richmond,) and is at this time, a non-resident of this commonwealth.”
    After argument, the court rejected the plea, and the case came on to be heard upon the general issue. A jury was called, and the plaintiff having examined several witnesses, and rested his cause, on motion of the defendant’s counsel, the court gave the following instructions to the jury: “If the jury believe from the evidence that the slave Frank in the declaration mentioned, was sold or exchanged by the defendant with the plaintiff, for another slave named Winston, then and there sold and delivered by the plaintiff to the defendant, and that the sum of $300 was then and there paid by the defendant to the plaintiff as the difference in value between the said slaves, and that shortly after *the sale, the plaintiff alleging that the said slave Frank was unsound, tendered him to the defendant or his agent, together with the said sum of $300, and demanded the slave Winston, which was refused ; and subsequently the plaintiff sold the slave Frank and received the proceeds of such sale to his own use, without notice to the defendant of the time and place at which the sale would be made, and that it would be made on account and at the risk of the defendant, then the plaintiff is not entitled to recover in ■ this action, though the jury should believe, that at the time of the sale the said slave was unsound.”
    The hypotheses of the instruction were in accordance with the facts. Winston, valued at $900, was exchanged by the plaintiff for Frank, valued at $600, the defendant paying to the plaintiff $300, the difference in value. The bill of sale recited the consideration for the sale of Frank as $600. After the above instruction was given, the plaintiff by counsel asked the court to give another instruction, which, after reciting that if the jury believed the facts above stated, proceeded as follows: “And shall also believe that at the time the exchange was made by the defendant with the plaintiff, the said slave Frank was unsound, then the plaintiff is entitled to recover of the defendant such damages as he may prove to their satisfaction he has sustained by the breach of the warranty of soundness and healthfulness, contained in the conveyance of the slave Frank by the defendant, unless the jury shall be further satisfied that the said sale of the slave Frank, made at public auction as above stated, was so made before the institution of this action.” The court refused to give its instruction, and there was a verdict and judgment for the defendant; from which the plaintiff appealed to this court.
    Crump, for the appellant:
    Upon the first instruction, the question is as to the necessity of a notice of sale to the vendor. In no case can I find any requisition of such a notice. In an action *against the vendor of a slave, the vendee need not aver or prove that he gave him notice of the pendency of a suit in which the slave was recovered. Daniel’s ex’or v. Cooke, 1 Wash. 306. And yet this would be as necessary, on every principle, as it would be to give notice of the sale of the negro.
    In McKenzie v. Hancock, 1 E. & Moody, 436, (21 Eng. Com. Daw, 484,) it is held, that, after tender, a right to recover for keep arises, for so long as might be “reasonably occupied in endeavoring to sell the horse to best advantage.” See also Street v. Blay, 2 B. & A. 456, (22 Eng. Com. Daw, 123;) Pulton v. Dattimore, 9 B. & C. 259, (17 Eng. Com. Daw, 373;) Dawson v. Callis et als., 4 Eng. D. & Eq- Rep. 338; Selwyn’s N. P. (8th ed.) vol. i. 657, where the law is laid down as in McKenzie v. Hancock, and which is cited approvingly by Denman, C. J., in Chesterman v. Damb, 2 A. & E. 129, (29 Eng. Com. Eaw, 48). In all these cases, the principle decided is, that the vendee may sell as soon as possible for the best price; and it is no where said that he is bound to give notice of sale to the vendor.
    In Caswell v. Coare, 1 Taunt. S66, no tender had been made, and Eord Mansfield held, that there could be no recovery for the keep, “but that when the warranty was broken, the plaintiff might instantly have sold the horse for what he could get, and recover the residue of the price in damages.”
    As to notice of unsoundness, the plaintiff is entitled to recover without giving it. Adam v. Richards, 2 H. & B. 573; Buchanan v. Parnshaw, 2 T. R. 745, cited approvingly in 2 Stark, on Evid. 904, 6th Am. ed.; and in Pateshall v. Tranter, 3 Adot. & E. 103, (30 Eng. Com. Eaw, 39,) it is laid down, that a buyer may recover on a warranty, although he neglected to inform the seller for months after he discovered it.
    If notice of unsoundness is not necessary to recovery, a fortiori notice of sale would seem to be unnecessary. All that can properly be required is, that the sale should *be fairly made. The court below, however, decided it to be necessary, and so erred, as I submit.
    The refusal to give the second instruction was also erroneous. The sale of the negro having taken place after the action commenced, the defendant could avail himself in no manner of that sale, as I submit, but if he could, he must have done so by special plea, which he did not make. Mag-gort v. Hansbarger,' 8 Eeigh, 532.
    Stanard and Eyons, for the appellee;
    The instruction of the court below was, that the plaintiff, on the facts supposed, could not recover in this action — one of covenant.
    If A purchases property of B, with warranty of soundness, and afterwards desires, and takes proper steps, to return him for unsoundness, the contract is at an end, whether B is willing or not; for it was the right of A to return him, and there was a correlative obligation on B to receive him; and so the contract is at an end. Thornton v. Wynn, 12 Wheat. 183. He may treat the property either as his own, or as that, of the vendor. If he treats the property as his own, he may sue for damages for the breach of contract; but if he tenders the property back, and the vendor refuses to accept it, he may treat it as the property of the vendor, and in that case, must give notice' to the vendor of the time and place of sale. If he sells it without notice to the vendor, he sells it as his own; for the vendor would be interested in the sale of his property, and so would be entitled to notice. He cannot, as did the plaintiff in this case, treat the property as his own, and yet sue upon the contract of warranty, by which he supposes it to have been the defendant’s, and to have been sold on his account. As the vendee could not give the property away and yet recover the whole price, so he cannot sell it for an inadequate price. Hence, he must give the vendor, by a notice, the chance of preventing such a result, by his presence and exertions.
    *In Rutter v. Blake, 2 Harris & Johnson’s (Maryland) Rep. 353, it was held, that notice not having been given of the re-sale of the goods, the vendee could not recover the damages sustained by him, in a suit upon the warranty.
    If a tender of the property is made, (though unnecessary, Chitty on Contracts, 458,) it amounts, as we have seen, to a rescission of the contract, and the plaintiff cannot sue in covenant on the contract, but must declare specially in case. Vide Chitty on Contracts, 458, 741; Purley v. Balch, 23 Pick. 283.
    There is no allegation of special damage in this case, and so the plaintiff must fail.
    Mr. Crump seems to rely specialty on Caswell v. Coare. That case, however, as it'seems to us, does not avail him, but simply decides what is the measure of damages. In Chesterman v. Eamb the vendee gave notice to the vendor, and the doctrine of that case is in no way inconsistent with that for which we contend. We think that Maggort v. Hansbarger has no application to this case. The second instruction only decides that it makes no difference that the sale was made after suit brought, and we think it needs no comment.
    If, however, the court should consider the instruction erroneous, another question wilt arise. We think the court erred in rejecting the plea of non est factum. There was no unreasonable delay in tendering it, for the facts stated to the court justified that delay; and besides this, the plea was offered after the continuance of the case, and its reception could have produced no delay in the trial. Tomlin’s adm’r v. How’s adm’r, 1 Gilmer’s Rep. 1. The substance of the plea, too, was of sufficient importance to defeat the action. In United States v. Nelson & Myers, 2 Brock. 64, it was held, that such a paper filled up after being signed, without the authority of the obligor, though he knew what sort of paper it was to be, could not be recovered' on.
    *Crump, in reply:
    It is said that the negro was sold as the .property of the vendor, and that he should have had notice. But this cannot be, for the bill of sale is made by the vendee or his agent, the auctioneer. If the negro dies, he dies the property of the vendee. All the cases I have cited are cases in which the parties, having made a tender of re-delivery, (which is said on the other side to rescind the contract,) yet • brought suit upon their warranties.
    It is true a party may, for good cause, abandon a contract, but he cannot rescind it without the consent of the other party; and in the former case he may recover damages on the abandoned contract, or refuse to pay the consideration pro tanto. If an offer to return an unsound negro is a rescission of the contract, who would ever bring an action of warranty? A sale once made, is made forever, unless there is an agreement limiting the sale, a failure of consideration, or a fraud practiced in procuring it. In every other case the contract is binding, and cannot be rescinded without the consent of both parties. There is nothing, therefore, in the position taking on the other side, (even if the argument supporting it were sound,) that the contract was rescinded, and so suit could not be brought upon the warranty. See Chitty on Contracts, p. 458, and note.
    The case of Rutter v. Blake, cited on the other side, does not aid their case. It was decided on special circumstances. The case was one of difference of quality, and there was no express warranty. The court simply decided that the vendee had been guilty of too much delay and neglect to hold the vendor to responsibility.
    As to the plea, it was properly rejected. In June, 1841, the defendant pleaded the general issue, and it was not until six years afterwards that this plea was tendered ; when the defendant had been ruled to give further special bail, and other orders had been entered in the case. The reasons assigned for the delay were *wholiy insufficient. Even if absence from the State constituted any excuse, as I think it did not, yet that absence had been of only two years duration; and as to his alleged ignorance of the law, which prevented him from knowing his rights, it is clearly no excuse.
    
      
       Breach of Warranty — Notice to Seller of Defects or Nonacceptance. — The true rule is that where goods delivered to the buyer are inferior in quality to that which was warranted by the vendor, the buyer may bring an action for the breach of the warranty immediately, without returning the goods or giving any notice to the seller. Eastern Ice Co. v. King, 86 Va. 102, 9 S. E. Rep. 506. The principal case is cited in 28 Am. & Eng. Enc. Law (1st Ed.) p. 819, to the point that a mere offer to return the property sold because it fails to comply with the warranty, does not, of itself, constitute a rescission of the contract, and the vendee may, after such offer has been made and refused, still eléct to sue upon the warranty, thereby affirming the contract.
    
   GIIyMER, J.

This was an action of covenant brought by Graham, to recover of Bardin damages for a breach of warranty of the soundness of a slave, sold by Bardin to him. At the trial the defendant moved the court to instruct the jury, that if they should be satisfied from the evidence, that the plaintiff, (after the sale and deliver}' of said slave,) alleging that he was unsound, proposed to return him to the defendant, and to rescind the contract, and the defendant refused to receive him; and that the plaintiff afterwards sold said slave, and received to his own use the proceeds.of sale “without notice to the defendant of the time and place of sale, and that it would be made on account and at the risk of the defendant — then the plaintiff is not entitled to recover in this action, though the jury should believe, that at the time of sale the said slave was unsound;” which instruction the court gave. In giving this instruction, I think the court clearly erred, as a brief statement of the law will show. When a vendee of personal property, takes from the vendor a warranty of soundness, and gets possession of the property under his purchase, if he becomes satisfied that the property was unsound at the time of the sale, he has a right to pursue one of two courses; either to keep the property and sue the vendor on the covenant, or to return the property in a reasonable time and sue for the purchase money. In the first case, if the vendee keeps the property, and recovers from the vendor the difference between the value of the property sound, as warranted to be, and unsound as it was, at the time of sale, he will have all he is entitled to. In the other case, if the vendor takes back the property, then the contract is rescinded, and if he pays to the vendee the purchase money, there being no question *as to expenses for keeping, &c., then the parties are placed in “statu quo.” But suppose as in this case, the vendor refuses to take back the property, he thereby virtually denies the breach of warranty alleged by the vendee, and by keeping the price of the property and refusing to rescind the contract, he insists upon it. What now are the rights of the parties? The vendor has made a warranty which has been broken, the property has been tendered to him, he has been notified of its unsoundness, and he has refused to take it back; on the other hand, the vendee has done no wrong, been guilty of no neglect, but has proposed in a reasonable time, to restore the property and to rescind the contract, and has been prevented from doing so by the wrongful act of the vendor; or, as has been already stated, by the vendor refusing to rescind and insisting on the contract — and yet by the instruction of the court, when he sues on the warranty and meets the vendor on his own ground, he is to be defeated, because he proposed a rescission of the contract to which the vendor wrongfully refused to accede. This mistake (no doubt) grew out of some loose expressions in some of the cases in which it is stated that the vendee may rescind the contract. The vendee when he discovers that the property warranted sound, is unsound, may elect to abandon the contract, and if he offers to restore the property in a reasonable time, and the vendor refuses to receive it, he (the vendee) having done all in his power, may regard the contract as rescinded for the purpose of enabling him to sue for the purchase money; and this is the true meaning of the cases referred to by the appellee’s counsel, as I understand them.

To allow the vendor to defeat the vendee’s action on his warranty, by permitting him after he was sued to hold a contract as rescinded, which before suit he insisted on and refuses to rescind, would be contrary to justice, to common sense and to law; it would be permitting him to take advantage of his own wrong. Chitty on Contracts, 458-9. I am of opinion that the Circuit *Court erred in giving the instruction asked by the defendant, in refusing to give the instruction asked for the plaintiff, and in rejecting the plea of non est factum tendered by the defendant. I am for reversing the judgment.

The decree entered was as follows, all the judges concurring:

This court is"of opinion that the Circuit Court erred, in giving the instruction asked for by the defendant, and mentioned in the plaintiff’s first bill of exceptions; and in refusing the instruction mentioned in the second bill. Therefore it is considered by the court here, that the judgment of the court below be reversed and annulled with costs, that the verdict of the jury be set aside, and the cause remanded to the Circuit Court for the county of Henrico for a new trial to be had therein, upon which the instruction spread out in the first bill of exceptions is not to be repeated; and the said court is directed to permit the defendant, if he shall desire to do so, to amend his pleadings by filing the plea heretofore offered and rejected, or any other proper plea that he may offer in due time.  