
    
      C. D. Wurdeman vs. G. A. Robertson and Wife, and Mrs. Harriet K. Roberts.
    Heard before Chancellor Desaussuke, Charleston, January Term, 1887.
    This is a bill to enjoin the enforcement of a verdict and judgment at law, which the present defendants, Robertson and wife, recovered at law against the present-complainants, or to recover back the money, if compelled to be paid. After the last verdict at law, the then defendants, appealed, and moved for a new trial. The Court of Appeals, by its decree and judgment, dismissed the motion for a new trial. The Court of Appeals stated that the slaves, in controversy, between the parties, were improperly and illegally sold by Mrs. Roberts, the executrix of Mrs. Cruger, to Mrs. Wurdeman; that she having assented to the legacy to the grand.daughter of the testatrix, Mrs. Cruger the legal right to the slaves vested in her, and in her husband, Robertson, the defendants, who were entitled to recover the same in the suit at law against Mrs. Wurdeman, the present complainant, the statute of limitations not having attached.
    The cause, then, has been fully tried at law, and decided by the Court of Appeals. No now evidence has been adduced here to make a new case, and the judgment, as lar as it regards Mr. and Mrs. Robertson’s suit against Mrs. Wurdeman, must be sustained. The bill, therefore, is dismissed as to Mr. and Mrs. Robertson, with costs.
    The demand against Mrs. Roberts for restoration of the purchase money of the sla es in question, which she sold illegally to Mrs. Wurdeman, is a iother question, and depends on other grounds. That has not been decided by the court in the suit at law. Mrs. Roberts was not a party-thereto. She caused the slaves to be sold by her agent, and the purchase money was paid by Mrs. Wurde-man, to that agent; the sale has been declared void, and Mrs. Wur-deman deprived of the slaves, or their value, phe ha* an equitable right to' reimbursement. The question is, "Whether she has a remedy against Mrs. Roberts The evidence in the case is quito clear, that Mrs. Roberts authorized and directed the sale of the slaves in question, and that Mr. Fell was merely her agent to make the sale. It is also .certain he made the. sale to Mrs. Wurdeman, who paid a-fair price to Mr. Fell, as agent of Mrs. Roberts,-
    The recovery at law by Mr. and Mi’s. Robertson, against Mrs. Wurdeman, deprives her of the property she purchased, so that unless she can recover back the amount of the purchase money she paid, she will be a loser to that amount. In other words, that the consideration for which she paid her money, has failed. The rule is, that when the consideration fails, the purchase money should be returned. And it would appear, the principle is not denied ; but it is contended that it cannot be applied to this case, because it appears by the evidence of Mr.' Mitchell f that Mrs. Wur* ¿lemán was informed of the will of the testatrix, and warned that Mrs. Roberts had no right to sell the slave, aud therefore bought at her own risk ; and because it is alleged Mrs. Roberts never received the purchase money from her agent, Mr. Fell, and therefore is not bound to repay the purchase money to Mrs. Wurdeman, It does not appear to me, that Mrs. Roberts can be protected from lia> ibility on the first ground. She authorized the sale made by her agent, and he warranted the title to the purchaser. It cannot be said she meant to authorize the sale oí her own slaves, and not those in which her childron were concerned, for she, when advised oí the sale of the slaves in question, confirmed the same by her letters. Mrs. Wurdeman beirig. warned that there might be a doubt as to the title, doe? uqt exonerate from responsibility. Mrs. Ro. berts, who was executrix under the will, had the legal title in her, and knew better than Mrs. Wurdeman, whether she could or not make a legal sale, and give a legal title ; she decided that she could, and gave, through her agent, a warranty title; the warranty has failed, and I hold her responsible.
    On the other ground assumed, as an exemption, I am equally clear. There is some doubt, and even contradiction, in the evidence, whether Mrs. Roberts received the money paid fay Mrs. Wurdeman to the agent, Mr. Fell, for the slaves in question. He swears, that he remitted the price of these particular slaves, directly to her. He speaks, however, from memory, after many years have elapsed, and having actually made various remittances, ©n account of the extensive sales he made, might intend, or suppose, that one of them was of this particular money. But bis account of moneys received and paid for, and to, Mrs. Roberts, does not sustain his recollection of a specific remittance. And it does appear he fell largely in debt to Mrs. Roberts, on account of the sales he made as her agent, which balance has never been reco-covered from him, and he is insolvent. A loss, therefore, is sus» tained, and the question is, who shall bear it. Mr. and Mrs. Robertson have been protected against the loss, at. the expense of Mrs. Wurdeman. It appears to me, that Mrs. Roberts is bound to make good that loss. Mr. Fell was her agent to sell and receive, and tq pay, for she authorized and confirmed his acts. The payment, therefore, made by Mrs. Wurdeman to Fell, was a payment to Mrs. Roberts, and she is liable, even though Fell never paid over the money to her. But. in reality, the payment actually made to her by Fell, on account of the sale of the slaves and other property, greatly exceeded the amount of the price of the slaves in controversy, and she was surely bound to apply the money so received, to the reimbursement of Mrs. Robertson, whose slaves she had improperly sold, before she applied to her own use any part of said money.
    It is, therefore, ordered and decreed, that the defendant, Mrs. Harrie K. Roberts, do pay to the complainant, the sum of two hundred and ninety-five dollars, the amount of the price of Rosanna, received bv her agent, Mr. Fell, on the sale of Mrs. Roberts’ slaves, together with interest from the 24th May, 1834.
    JJENRY W. DESAUSSÜRE.
    
      Mrs. Roberts, the defendant, against whom a decree has been made, appeals from the decision of the presiding chancellor, on these grounds :
    1. That the bill of complainant, Airs. Wurdeman, charging a fraud, was wholly unsupported by any evidence, according to the practice of this court, there being neither two witnesses, nor one witness and circumstances, to disparage or contradict the defendant’s answer on oath, denying, positively, the charges made in the bill.
    2. That the testimony of Mr. Fell, the only witness, was inadmissible, as he was interested.
    3. That his testimony, if competent, was contradicted by his own general account current, with defendant, made out when matters were fresh in his recollection, and in which there is no specific item of a remittance of the purchase money of Rosanna ; but on the contrary, only items of remittances to defendant generally, on her own account, to whom he was, by his own shewing, largely indebted by a balance never paid.
    4. That in other respects, the decree, ordering Mrs. Roberts to refund to complainant the amount of the verdict for Rosanna, ought to be reversed.
    W. LANCE, Defendants Solicitor.
    
    Lance, for motion.
    Hunt, contra.
    Filed 21st March, 1837.
   The court concur with the chancellor. The appeal is, therefore, dismissed.

DAVID JOHv’StON,

WH. HARPER,

3. JOHNSTON,  