
    
      Carter and Harden vs. Mary Walker.
    
    A mere proposal by the purchaser of a chattel to return it to the seller, the chattel not being present, is not a sufficient tender back o f the chattel so as to amount to a rescission of the contract of sale.
    If a purchaser, after tendering back a chattel, offers to sell, it, he thereby treats it as his own and waives the tender; semble.
    
    In this State, the purchaser of a chattel may, by tender back, rescind the contract, without the consent of the seller, in the following cases; 1st. Where the right to return the property was a part of the original contract. 2nd. Where there has been fraud; and 3rd. Where there has been an entire failure of consideration.
    Under our discount law, a breach of warranty, whether it goes to the whole consideration or only a part, may, in an action to recover the price, be given in evidence in mitigation of damages.1
    Assumpsit for money had and received will not lie by the purchaser of a chattel to recover back the price, until the contract has been rescinded. He must sue on the warranty.
    If the contract has been rescinded, the purchaser, if plaintiff, should recover the whole price paid; if defendant, should be entirely discharged.
    If the contract has not been rescinded, then the purchaser should only pay so much as the chattel, in its unsound state, was worth ; or if it was of no value, he should be entirely discharged.
    Where the contract has been rescinded, the effect of the verdict will be to revest the title'in the seller, who will, it seems, be liable to the purchaser for the expense of keeping the chattel after the tender.
    Whether a verdict will operate to confirm a rescission, will depend, at least to some extent, on the form of the action and the pleadings. A purchaser, therefore, should not sue on the warranty if he desires the contract to be regarded as rescinded, but should bring some action which treats the contract of sale as void.
    Where a purchaser, after tender back, exposed the chattel for sale at public auction and no person would bid, Held, that it was not conclusive evidence that the chattel was of no value.
    
      Before Evans, J. at Chester, July, Extra Term, 1845.
    Assumpsit for the price of a negro.
    The plaintiffs, as administrators of Joseph Carter, sold the negroes belonging to his estate at public auction. The defendant bid off a negro woman named Dorcas, for ninety-two or ninety-three dollars. For some reason not explained, possession was delivered of Dorcas, without a note being given according to the terms of the sale. The defendant having afterwards refused to give her note, and offered to return the negro, this action was brought for the purchase money. The sale was made about the 1st January, 1848. Mr. McElhany, the auctioneer, said that several of the negroes were sold as unsound. When Dorcas was set up, he said to the bystanders that she was sixty or seventy years old, and sound as far as he knew. Carter bid for her, and was the last bidder before defendant. Harden has since told him he thought she was sold as unsound. If sold as unsound, this witness thought she would have brought nothing, but he said he scmL jpst before, an old woman represented as having rheurmktism for more than one hundred dollars. It was-proved by^osey that the intestate, Joseph Carter, called on him to cure this woman of a cancer in the foot. He examined her, and found a lump in the bottom of the foot of the size of half an acorn. She said it came with a pain, and sometimes was painful. He replied it might be a cancer, and did do what he could for it. But he never saw her afterwards. Mrs. Montgomery, defendant’s daughter, said there was a hard place in the bottom of the foot, and a place split open above the ancle. Sometimes she is better and sometimes worse. She is of no value. Would not have her. Saw her not long after the sale, but more than a week. She did not limp. Never heard any thing was the matter before the sale. Joseph Walker said that when one of the plaintiffs came to get a note, the defendant refused to give one, and offered to return the negro. . Carter was inclined to take her back if Harden was willing, but they refused. Dorcas has a soreness in the foot, which is sometimes better and sometimes worse. She was sold as sound. W. E. Estes said he had never heard of Dorcas having any disease of the foot before the sale. Harden said, here is Dorcas ; we offer her for sale; sound as far as I know. Several others sold as unsound. Harden has told him since, he would prove she was sold as unsound.
    
      Elijah Walker said he was near Harden when Dorcas was put up. Harden said she was sound so far as he knew. Heard of her foot being sore ten or fifteen days after the sale. Saw her three weeks after with her foot on a block. She said it was very sore. She is of no value.
    On the part of the plaintiffs it was proved by Mrs. Lucas that she saw the defendant in the kitchen with Dorcas. Witness told Dorcas, “ put up your stick and go half bent, and if you don’t bring much I’ll buy you.” Defendant said “ don’t you bid against me.” When she was offered for sale, Harden said “ she was enjlicted in one foot with something like rheunptic pains; as for any thing else she was sound as far as he knew.” Dorcas walked with a stick, or she usually did. Has seen her limp, but did not know any thing was the matter. Thought it was rheumatism. Mrs. Walker was nearer to Harden than she was. He talks rather low. Thomas Lucas, the husband of the last witness, said he thought, but he was not certain, that' Dorcas was put up as having the rheumatism in her foot, leg or ancle. Has seen her since the sale. She had walked three miles ; appeared much the same, except she was reduced.
    
      S. Harden said that he thought all the old negroes were put up as unsound, but he had no particular recollection as to Dorcas. Golwer said Dorcas came up hobbling with a stick. J. C. Lifford said, in May or June after the sale he went to Mrs. Walker to buy Dorcas.as a nurse. Mrs. Walker talked as if she would sell her; offered what she had given, and afterwards one hundred dollars, both of which was refused; she said she did not think Dorcas would live with him. As he was going away, she asked if he would give one hundred and twenty dollars; he replied, whenever she was willing to take one hundred dollars to send him word; she said nothing of unsoundness ; he had heard nothing of her being unsound.
    On the first monday in July the woman Dorcas was carried to the Court House by the defendant, and exposed to public sale, but there was no bid; her leg was then swelled; the plaintiffs and others were present.
    His Honor repeated the evidence of the witnesses to the jury, and submitted the case on the following propositions.
    1.Was the negro unsound at the time of the sale ? If the disease in the foot and leg did not exist at that time, then the plaintiffs were entitled to recover. If the disease did exist then, their attention was directed to the following points.
    1. Was there a general warranty of soundness, then the plaintiffs could not recover if the negro was of no value.
    
      2. Was there a special warranty that the negro was sound so far as the sellers knew. In such case it was necessary that the jury should be satisfied, not only of the fact of unsoundness, but that the sellers knew of it, in order to discharge the defendant from the contract.
    3. In the absence of any satisfactory proof of warranty, either general or special, the law implied a warranty where a full price was paid; but that this implication of warranty was rebutted by proof that the buyer had notice of the existence of disease, although the precise nature or extent might not be known; which proposition was illustrated by the several cases which have been decided.
    He further charged the jury, that although the unsoundness existed at the time of sale, they might find for the plaintiffs the value, if they were satisfied she was of any value. He did not think the mere offer to return the negro, whilst the purchaser held possession, was any rescission of the contract. Nor did he consider that the offering her for sale at auction, where there had been no sale, as amounting to any conclusive evidence of her being entirely valueless, so as to preclude the jury from finding what they believed to be her true value. If she had been actually sold it might have been otherwise.
    The jury found for the plaintiffs about half the price the defendant had bid the negro off at.
    The defendant appealed, and now moved for a new trial, on the following grounds.
    1st. Because the presiding Judge erred in charging the jury, as matter of law, that although there was a breach of the warranty of soundness, and the negro woman, Dorcas, was tendered back, and exposed to sale at public outcry and brought nothing, they still ought to find for the plaintiffs as much as said negro slave was worth.
    2nd. Because the presiding judge erred in not charging the jury as matter of law, that if they believed there was a warranty of soundness, and there was a breach of the warranty, they must find for the defendant; the property having been tendered back, and offered for sale at public outcry, and brought nothing, that was the only evidence of her value to be regarded by them.
    3rd. Because it was proved beyond doubt that the negro Dorcas was unsound at the time of sale and of no value ; that she was sold as a sound negro, or, at the least, sound so far as the plaintiffs knew; and the knowledge of the unsoundness of the negro at the time of sale was proved beyond doubt; the verdict of the jury is contrary to the facts of the case, and not only against evidence, but without evidence and contrary to law.
    
      McAlilly, for the motion.
   Curia, per Evans, J.

In this case it must be assumed that there was a warranty of some sort, and that the negro was unsound, because the jury have so found. Under these circumstances the defendant contends that having tendered back the negro, she had rescinded the contract and was entitled to a verdict. This proposition cannot be sustained : 1st. Because there was in fact no tender. What she calls a tender was a mere proposal to return the negro, who was not present, so that if the plaintiffs had assented, they could not have re-possessed themselves of her. 2d. The defendant’s subsequent conduct shews she still regarded the negro as hers, by two offers to sell, which she could not do if the contract was rescinded, and the negro revested in the plaintiffs by the tender.

But suppose the tender was sufficient, and not waived by her subsequent conduct, had she a right to rescind the contract ? — for if she had not, then the tender was a nugatory act. By the rules which are recognised in the English - Courts, a purchaser cannot, by tender back of the chattel which he has bought, rescind the contract, except in certain specified cases wherein the law recognises his right to do so — in other cases the assent of the seller is an essential ,j requisite to the rescission. These cases are, 1st. where the ; right to return the property was a part of the original con- : tract; 2nd. where there has been a fraudulent concealment. It is even doubtful whether a breach of the contract, not - coming within the above exceptions, can be given in evidence to produce an abatement in the price. Chitty, in his treatise on contracts, page 363, says. “Where the contract of sale and warranty has reference to a specific chattel, in esse, and seen by the purchaser at the time of the sale, (as a horse, <fec.) and the purchaser has accepted the article, (even though he accepted it before he discovered the breach of warranty) it seems he cannot effectually tender back or return the goods, so as to obtain a defence to an action for the price, the vendor refusing to take back the chattel.” To the same effect is the judgment of Lord Tenterden, C. J. in the case of Street vs. Blay, 2 B. and Ad. 456. In the case of Thornton vs. Wynn, 12 Wheat. 183, which was an action on a note given for a race horse warranted sound, the Supreme Court of the United States decided that the purchaser should pay the note, unless the jury believed ,that the seller knew of the unsoundness, and was therefore guilty of a fraud, although there was clear proof of unsound-mess, and the horse had been tendered back. But it is said, in a note to 7 East, 481, that Lord Kenyon had decided that a breach of warranty might be given in evidence in mitigation of damages, in an action to recover the price, and there is no doubt that such a defence may be made under our discount law, whether it goes to the whole consideration or only a part. [On the right of the purchaser to rescind, by a tender back of the property, our courts have gone farther than the English, and I believe I may say that it is the settled law, that where there has been an entire failure of consideration, and the chattel has been tendered back, and the contract thus rescinded, the purchaser may recover back the price, if paid, or defend himself effectually if sued for the purchase money. None of our cases go further than this, either in relation to lands or chattels./In all of them it is recognised as the settled law, that assump-sit for money had and received, will not lie until the contract has been- rescinded. This cannot be done without the consent of the seller, unless in those cases where the purchaser has the legal right to rescind, in which cases he may rescind by a tender back, or in case this has been rendered impossible by the death or destruction of the chattel, he may rescind by notice without tender. Fowler vs. Williams, 2 Brev. R. 304; Seibles vs. Blackwell, 1 McM. 56 ; Byers vs. Bostwick, 2 Mill. R. 75 ; Wilson vs. Ferguson, Chev. 193. The case of Ashley vs. Reeves, 2 McC. 432, at first view might seem to have gone further. That was an action to recover the price of a negro. The jury found for the defendant, although there had been no tender, and the case, therefore, must have been supported on the ground that the negro was of no value. It could not be on the ground of rescission, because all the cases agree there can be no rescission without tender, if it be possible; and the court say, in an action on the warranty, no tender is necessary.

Upon a review of all the cases, it seems to me, the law may be stated to be this; if, by law, as in case of deceit, or entire failure of consideration, the purchaser be entitled to rescind the contract, the verdict should be for him, whether he be plaintiff or defendant. If the contract is still open, and not rescinded, the seller is entitled to recover so much as the thing sold, in its unsound state, is worth; and if it is worth nothing, he may be discharged entirely from the price. The effect of the verdict is, in the first case, to revest the property in the seller ; in the last case the purchaser must keep it, paying the value as found by the verdict. There is great propriety in adhering strictly to these legal distinctions, and both the form of the action and the pleadings should be framed with reference to them. It often becomes a question of difficulty to determine after the verdict to whom the property belongs, as was the case in the City Council vs. Cohen, 2 Sp. R. 408. There was, in that case, proof that the negro was valueless, and so far as could be known the jury had so regarded her, and she had been tendered back; yet, as Cohen had brought an action for a breach of the warranty, and not the appropriate action, if the contract had been rescinded, he was held to be still the owner of the slave, and bound to pay for her maintenance as a lunatic. This case would seem to indicate that the question of ownership, after the verdict, is to be decided by the record, and such, in general, would certainly be the fact, although in certain cases where the issue presented two questions of fact, upon either of which the verdict might have been rendered, it may be that evidence ali-unde might be received to shew upon what ground the verdict was rendered, as in Henderson vs. Kenner, 1 Rich. 474.

In the preceding remarks I have maintained that a tender would be unavailing except in those enumerated cases where the law recognises the right of the purchaser to rescind the contract. In other cases it is not necessary, but it may be prudent to offer to the seller an opportunity of rescission, thereby shewing the sincerity of the purchaser’s complaint of a breach of warranty, and that it is not, as is very often the case, merely pretensive.

In those cases where the law recognises the right of the purchaser to rescind the contract, but the seller refuses to take back the property when tendered, it becomes an inter-resting question to determine what is to become of the chattel during the pendency of the litigation. Must the purchaser, in all cases, abandon the possession 1 or may he keep it 1 and if he does, can he recover compensation for so doing 1 Most of the actions on warranties in this State relate either to slaves or domestic animals requiring both care and subsistence. The law does not allow a man to determine definitively on his own rights ; his right to rescind is unsettled until decided on by the judicial tribunals. To require that he should abandon a slave or a horse would be often inhuman in the extreme, and I do not see any reason why he may not retain the possession as a bailment during the pendency of the litigation, and if the jury affirm his right to rescind, then the chattel is vested in the seller from the time the contract was rescinded. In the mean time the purchaser has been put to expense in keeping it, and I do not see any reason why he may not, on proper allegations in his declaration, or notice of discount, recover such expense from the seller. This seems to have been fully recognised as law in the case of Seibles vs. Blackwell, before referred to.

Note. On the subject of actions on warranties on the sale of chattels, see 1 Wheat Selw. Deceit, 647; 2 Steph. N. P. Deceit, 1279; and Chandlor vs. Lopus, 1 Smith L. C. (Amer. Ed.) 145. Yide Chester man vs. Lamb, 2 Ad. and Ell. 132, as to the right of the purchaser to recover for the keep of the horse after tender back. R.

There is nothing in the second point made in the grounds of appeal. The exposure of the negro to public auction is no' conclusive evidence of value. It may be evidence that those who were present were unwilling to buy a negro alleged to have a cancer on her foot, but whether this was a fact, and whether she was of no value, belonged to the jury to decide.

As the jury have found that the negro was of value, and there was no allegation of fraud in the sale, the defendant was not entitled to rescind the contract. She was entitled to an abatement in the price, and that the jury have allowed her. The motion is dismissed.

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