
    
      Henry Evans vs. Jerome Cox.
    
    Plaintiff sold and delivered to defendant a mule, and agreed to accept in payment a demand which defendant held against a third person. After the sale defendant offered the demand to the plaintiff which he refused to accept, and brought his action for the price of the mule. Held, that he could not recover.
    
      Before Wardlaw, J. at Abbeville, Spring Term, 1846'.
    
      Sum. pro. for the price of a mule sold and delivered.
    The delivery and value of the mule were proved on the part of the plaintiff. The defendant had a demand against one Freeman for money paid on a judgment, to which he, the defendant, was surety for Freeman, and, in his behalf, several witnesses testified that the plaintiff agreed, when the mule was delivered, to accept this demand against Freeman in payment of the price of the mule. One witness testified that, on one occasion after the sale, the defendant offered to the plaintiff either the mule or the judgment against Freeman, and he would take neither. Freeman was in bad circumstances, and it was doubtful whether the demand against him was worth any thing. The plaintiff, however, was his neighbour, and was well acquainted with his circumstances.
    His Honor decreed for the defendant, and the plaintiff appealed.
    
      Me Gowen, for the appellant.
    
      Jones, contra.
   Curia, per

Wardlaw, J.

This court, according to the view taken of the evidence on the circuit, understands that the plaintiff delivered his mule to the defendant under a contract that he would accept in payment the demand of the defendant against Freeman; and that an offer was made to him of either the mule or the demand, both of which he refused.

The plaintiff has no right to change the contract and say he must be paid in money. If the defendant refuse to assign the demand, the plaintiff may have damages for that refusal. If the defendant have imposed upon the plaintiff by misrepresenting the nature of the demand, then the plaintiff may have damages for the deceit. If there have been no transfer of the mule to the defendant, or if the contract has been rescinded by defendant’s nonperformance on his part, or otherwise, the plaintiff may sue in trover. But against this action for the price of the mule, the defendant well objects that he shall not be entrapped into paying with money for that which he refused to buy with money, and for which the plaintiff agreed to take what he has offered.

The motion is dismissed.

EichardsoN, EvaNS and Frost, JJ. concurred.

Butler, J. absent.  