
    Nott et ux. v. Marchesseau.
    Proof that plaintiff’s attorney offered to defendant to rescind the sale of & slave on receiving back the price, and that tbe offer Was rejected by defendant! who said that a law suit was ■unavoidable, will dispense with the necessity of a tender of the slave before suing to rescind'the sale.
    from the First District Court of New Orleans, McHenry, J.
    
      Griffin, for the plaintiffs.
    
      Barthe, for the appellant.
   The judgment of the court was pronouced by

Rost, J.

The plaintiffs allege that they purchased of the defendant a negro woman and two children, for a sound price and under full guarantee; that before, and at the time of the sale, the slave was afflicted, to the knowledge of the defendant, with a redhibitory disease, which renders her absolutely useless. A recision of the sale is claimed, with damages and interest. The answer is a general denial. There was judgment in favor of the plaintiffs that the sale be can-celled, and that the defendant be condemned to take back the slave sold, and lief two children, and to refund the price. -The defendant has appealed; and the> plaintiffs ask that the judgment be amended, by allowing them the damages and interest claimed in their petition.

The defendant contends that the slave in controversy; and her two children,should have been tendered to him, and that, without such a tender, the plaintiffs cannot maintain their action. It is admitted in the record that the attorney of the plaintiffs offered to the defendant to return the slave, and to rescind the sale, on receiving back the purchase money, and that the offer was rejected by the defendant, who said that a law suit was unavoidable. This declaration of the defendant,that he was determined to have a law suit, dispensed the plaintiff from the formality of making a tendor in the form prescribed by law.

On the merits, the case turns exclusively upon questions of fact, and the judgment is fully sustained by the evidence. We concur with the district judge that the plaintiffs have not made out their claim for damages or interest.

Judgment affirmed.  