
    
      Margaret H. Boinest, adm’ix. of D. Boinest, vs. Peter Leignez.
    
    An express declaration, by the vendor of slaves, that he warrants nothing but the title, precludes any implied warranty of soundness.
    An auctioneer’s duty is to sell 5 he has no authority to rescind the sale, even before it is completed by the payment of the purchase money.
    At the common law, and independently of the vendue Act of 1785, 4 Stat. 672, the owner of goods sold at auction may, if the purchaser fails to comply with the terms of the sale, resell the goods and sue for damages for the breach of the contract; and as he does not proceed under the Act he is not required to follow its provision by giving seven days notice of the re-sale. The notice of re sale should, however, be reasonable.
    The Act gives a right of action to the vendue master, but none to the owner. The owner’s right of action is at the common law.
    Where the action is by the owner, the re-sale does not furnish conclusive evidence of the damages, as it does where the action is by the vendue master under the Act.
    Where the terms of an auction sale of negroes were “one half cash, the balance in twelve months, and that until the papers were perfected, neither cash nor interest would be required.” Held, that this was notice to the purchaser that some time might he required to complete the sale by the delivery of titles, and that a tender of the negroes and titles twenty three days after the sale was within a reasonable time.
    The vendor of property is only hound to furnish a good title to the property. He is not bound to tender his own title if the right of property is in another.
    
      Tried in the City Court of Charleston, October Term, 1845.
    This was an action of assumpsit to recover damages upon the re-sale of certain negroes, originally purchased by the defendant from the plaintiff at a sale by auction of the property of the estate oí D. Boinest, of which the plaintiff was administratrix; which negroes, upon the refusal of the defendant to complete the contract, had been subsequently sold by the plaintiff at auction on defendant’s account, at a loss of $402,42. The plea was non assump-sit. So much of the testimony reported by the Recorder to the Court of Appeals as it is deemed material to state, is as follows:
    
      J C. Blum said he was the auctioneer at the sale to defendant, on the 15th of May, 1845, of seven negroes, to wit ; Pembroke, Judy, and their 5 children ; Leignez was the purchaser at $370 each, making in all $2,590 ; the negroes were delivered to defendant; they remained a week at his house ; when the negroes were put up, witness stated that he was directed to warrant nothing but the title ; that Pembroke said that he had a rheumatism in one of his shoulders, but that he, the witness, did not think it of much importance ; that Judy was a first rate cook, but had a sore leg ; that the rest were believed to be sound, but that he was directed not to warrant any thing but the title; this was announced so as to be heard by all; Judy complained on the table that she had a sore foot, and was sometimes laid up for months; she exhibited her foot; Leignez was present; the competition for the negroes was between Leignez and Chisolm; the boys constituted the great value of the lot; Chisolm tid $365 a piece. The terms of the sale were one half cash, the balance in twelve months, and that until the papers were perfected, neither cash nor interest would be required. On the 21st of May, Mr. McClure, the clerk of Mr. Kunhardt, who acted as the agent of the defendant, came to witness and said that he had come to tender back the negroes; he complained that the title to Pembroke was not perfect, and that Judy was unsound. Witness refused to receive them back for the estate, but agreed to receive the negroes subject to the defendant’s orders, rather than they should be turned into the street, and he did so receive them. On the 7th of June, witness tendered the negroes to the defendant, stating that the title had been perfected to Pembroke; witness here produced and proved the notice of re-sale in writing, dated June 10th, 1845 ; the resale was advertised for June 17th ; the notice of resale was published in the papers and appeared in a paper of the 17th ; the terms of the re-sale were the same as of the first sale; they were re-sold at $325 apiece; making in all the sum of $2,295, charges for feeding, expenses, &c., $87 42, nett sales $2167 58. The entries produced in his books were made on the day of sale ; are the original entries ; he stated, at the first sale, on the table, that Judy had a sore leg, and that Pembroke complained of a pain in his arm ; Judy had on stockings; can’t saw that Leignez was present when he made these declarations; sold them as Pembroke and wife and children as a lot; stated she was a cook ; at the resale he sold them on account of the former purchaser; he tendered the title of the plaintiff as administratrix to the negroes ; they brought a very good price; the negroes between the sale and re-sale while not in defendant’s possession, were supported by the plaintiff. The re-sale was advertised on the 10th or 11th, and the sale took place on the 17th. The condition of the property is generally stated at the sale; witness was instructed not to warrant, but to state the condition of the negroes, which he did.
    
      Henry S. Hall is the clerk of Mr. Blum ; was present at the sale of the negroes; they were knocked down to defendant at $370 each ; they went into defendant’s possession. Blum said he did not feel authorized to warrant the negroes ; the purchasers were invited to enquire ; Judy said she - had a sore leg, and Pembroke a sore arm; this Blum declared to be so. Judy complained at the time" titles were tendered to defendant, on the 7th of June; defendant said he had nothing to do with it, and referred to Mr. Kunhardt to act for him. Witness took down the sales in his book ; Mr. Blum also kept a book of sales ; considered them both correct. Judy complained of having been laid up for a time, but said she had been better for twelve months past, so as to cook for her owners.
    
      Jacob F. Schirmer; witness has received the whole purchase- money of Pembroke, that is, the price agreed to be paid at the first sale, as guardian of Thaddeus Street Boinest, and has invested it; witness acting in behalf of his sister, the plaintiff, charged Blum to gh*e notice that Judy had a sore leg, but to what extent he did not know; Blum stated at the sale that she had a sore leg ; he instructed Blum not warrant; Blum stated publicly, that Judy had a sore leg; witness knows nothing of Pembroke’s infirmity ; witness could not find the original bill of sale for Pembroke; immediately, when found, discovered, to his surprise, that it had been made out in the name of Thaddeus Street Boinest; he is now a little over sixteen. Ever since Pembroke was purchased by Mr. Boinest from Pre-vost in 1835, he had been regarded as the property-of Mr. Daniel Boinest, who had always paid taxes for him as his own. Witness has been appointed guardian of Thaddeus Street Boinest; after the second sale, he received the whole amount of purchase money of the first sale for Pembroke; at the second sale he gave a bill of sale of Pembroke as guardian of T. S. Boinest. The bill of sale was made for the purpose of tendering title to Leignez ; he received the purchase money of Pembroke as guardian of T. S. Boin-est. The bill of sale referred to was here produced in evidence, also the bill of sale from Prevost to T. S. Boin-est, dated 31st March, 1835, and certain proceedings in equity consisting of a petition on the 29th of May, 1845, and a decree for the sate of Pembroke; letters of guardianship to Schirmer, bearing date the 3d of June, were also produced.
    
      Dr. E. C. Geddings; witness examined Judy shortly after the defendant’s purchase; found her leg much swollen ; ulcerated; seemed of long standing; in his opinion rendered her unsound; if the ulcer were suddenly stopped, might endanger her life ; examined Pembroke ; he had a tumour in one of his arms ; could not be cured without an operation ; the tumour is an inconvenience. The sore on Judy’s leg is at the ancle ; is easily visible ; as long as the sore continues open, does not endanger her life, but incapacitates from work. Pembroke could be cured by an operation; would not call it (i. e. the operation) dangerous ; the ulcer on Judy is 3-4 of an inch in diameter; she is about 40 years of age. If Judy were put to work as a cook, she would suffer very much from the sore.
    His Honor the Recorder instructed the jury, that upon a sale of negroes, where there was no fraud or concealment, and where a fair disclosure or exhibition to the purchaser of the alleged ailments or defects, if any there were, was made by the seller at the time, accompanied with an express refusal to warrant the soundness, the law would not imply a warranty, however fair or high the price paid for the property might be. That therefore, if the jury believed from the evidence in this case, that there was no fraud or concealment in the sale by Blum, and that a fair disclosure or exhibition of the alleged ailments or defects of Judy and Pembroke were made at the sale, arid that Blum gave express notice that he would not warrant the soundness of the negroes, they would be bound to consider the sale to Leignez as made without any warranty of soundness; and that consequently the alleged defects as to soundness in Pembroke and Judy, furnished no ground for his refusal to comply with the contract of purchase on his part.
    With regard to the alleged defect in the title to Pembroke, he instructed the jury that in his opinion the seller was entitled to a reasonable time, under the circumstances of this case, in which to cure the defect; and that if they were satisfied this defect was cured within a reasonable time by the proceedings had in equity, the appointment of Schirmer as guardian, and the execution and tender of his bill of sale for .Pembroke, it furnished no ground of de-fence on the part of Leignez, and that he was answerable in damages for the loss sustained by the plaintiff. In this connection he remarked that it did not seem very material to the defendant, so that he got a good title to the negro Pembroke, through the procurement of the plaintiff, that the title should necessarily be technically derived from her ; and there appeared to be little or no ground of ap-. prehension of loss or damage to the defendant, on account of the supposed defect, as he had the implied warranty, and might have had the express warranty of title of the plaintiff, incorporated in the bill of sale, as an indemnity and security against any future injury on this account. In regard to the tender made to Blum the auctioneer, he expressed the opinion, that where an auctioneer was employed to effect a sale, as in this case, for a known principal living on the spot, and a sale had been effected by him, and the property delivered to the purchaser, that a tender back of the property, on the ground of unsoundness or want of title, should be made to the principal and not to the auctioneer, to warrant or sustain a rescission of the contract. He further charged the jury upon the evidence as to the re-sale, that no particular time of notice was required by law, to sustain a right of action in behalf of the principal or owner of the property.sold, but only such notice as would be considered reasonable under the circumstances ; and that if they were satisfied that such notice had been given in this case, it was sufficient, although short of seven days ; at the same time he called the attention of the jury to the evidence, especially that of Mr. Blum, upon which they would decide whether the seven days notice had not in fact been given, as the re-sale appeared to have been advertised on the 10th or 11th of June, to take place on the 17th. The jury found a verdict for the plaintiff for $402 42.
    The defendant appealed, and now moved for a new trial, on the following grounds :
    1. That his Honor erred in charging, that the law never implies a warranty where the vendor says he will not warrant.
    2. That his Honor erred in charging that no rescission of a contract (even before the sale is completed by the payment of the purchase money,) can be made by tendering or delivering the property to the auctioneer.
    3. That the court instructed the jury that as the title of Pembroke was bad, and in Thaddeus Street Boinest, still the plaintiff had a reasonable time to cure said defect, and that the purchaser had no right to repudiate the contract upon the discovery of the defect of the title.
    4. That notice of re-sale need not be under the vendue Act, and that the seven days was not necessary, but only a reasonable time.
    5. That Mrs. M. Boinest has a title in the negro Pembroke, so as to support this action, although, at the re-sale, Jacob F. Schirmer gave title in his own name, as guardian of Thaddeus Street Boinest, to the purchaser, and there was no evidence of transfer from him to Mrs. M. Boinest.
    6. Because his Honor charged, that if the negro Pembroke was sold as the property of the estate of Boinest, and turned out to be the property of Thaddeus Street Boinest, or of his guardian, Jacob F. Schirmer, nevertheless, the purchaser was bound to take the title of Thaddeus Street Boinest, or of his guardian Jacob F. Schirmer, notwithstanding the representation that the negro was sold as the estate of Daniel Boinest.
    
      Kunhardt, for the motion.
    Porter, contra.
   Curia, yer Frost, J.

On the first ground of appeal, here can be no doubt that an express declaration that the seller will not warrant, effectually precludes any implied contract; Caldwell vs. Porcher, 2 McM. 329; McLean vs. Ex'ors. of Green, 2 McM. 17.

The second ground affirms that the auctioneer may rescind a contract of sale made through his agency; or at ■least, that he may, before the sale is completed by the payment of the purchase money. Even the more limited alternative presented in this ground, cannot be maintained. An anctioner is an agent to effect a sale. As soon as the sale is effected, his agency ceases. If he has pursued his instructions, he is in no manner liable for the execution of the contract, and can neither add to, nor take from, the terms and conditions the principal has prescribed. His intervention was only employed to make the sale, and is withdrawn as soon as that is done, and the rest is left to the parties. In Nelson vs. Albridge, 3 Eng. C. L. R. 419, an auctioner had sold a horse of the plaintiff, and took him back from the purchaser without payment of the deposit, on his complaint that the horse did not answer the description in the advertisement. For this, the auctioneer was held liable. Best, C. J. said “ it was the duty of the auctioneer to sell, and not to rescind, to do and not to undo ; and the law would imply a contract, on his part, to discharge his duty and the plaintiff had a verdict.

The fourth ground of appeal excepts to the instruction of the Recorder to the jury, that on the re-sale in this case, no definite time of notice was required by law to support an action by the owner of the property sold, but only such notice as would be considered reasonable under the circumstances.

At common law, independently of the vendue Act of 1785, the vendor may sue for the price of goods sold, if the vendee fails or refuses to comply with the terms of sale; or he may proceed for damages for the breach of the contract.

It is the common usage, if the purchaser refuses to comply with his contract, and the seller prefers to proceed for damages, rather than for the price, to sell the goods on account and at the risk of the purchaser, and sue for the deficiency on the re-sale. The practice is advantageous to the vendee, in case the goods are declining in value, or are of a perishable nature; and affords security to the vendor, against any impaired value or destruction of his lien, and the insolvency of the vendee. In almost every instance of the sale of horses and negroes, this course is pursued when the purchaser refuses to comply with the contract, or seeks satisfaction from the seller, on account of his deceit or breach of warranty. If the vendor claims the price of the chattels, he cannot, consistently with such demand, dispose of the goods to another ; but if he only claims damages for the breach of the contract, it is not necessary that he should retain the goods. He merely alleges, that a valid contract was made by the purchaser, which has not been performed, and that he has sustained damage in consequence. In Maclean vs. Dunn and Watkins, 15 Eng. C. L. R. 129, and Jackson vs. Watts, 1 M’C. 288, it was ruled, that when the purchaser of goods refuses to take them, the vendor, by reselling them, does not rescind the contract, nor preclude himself from recovering damages for the breach of it. The time of resale is not limited by law, further than that it be reasonable with respect to the vendee, in giving him an opportunity to comply, and with respect to the sale of the goods, that the fair value may be realized. Such re-sale aifords, generally, satisfactory proof of the loss sustained by the vendor, in the non-performance of his contract by the vendee. It is not conclusive evidence ; though, if the re-sale be fairly made, the jury will generally make the deficiency the measure of damages.

The vendue Act of 1785, 4Stat. 672, provides that every person who shall purchase any real or personal property, at any public sale in this State, which sale shall be entered in the books of the vendue-master, as required by the Act, and who shall refuse to comply with the conditions of sale, within seven days thereafter, shall be liable for all losses thereon to the original owner; and for the more speedy ascertaining of such losses, the vendue-master is authorized to re-sell the property on the original conditions, giving seven days notice of the sale ; and whatever deficiency shall happen on such re-sale, the vendue-master shall recover at the first court, from the defaulting purchaser, with the commissions and other expenses attending the sale; and for expediting such recovery, the Judges of the Common Pleas are empowered to make such summary rules and orders as may tend to expedite the causes, notwithstanding the writ or process may be made returnable at any day after the time appointed for the holding of the court at which such causes may be tried ; and no judgment shall be arrested for any error in the proceeding.

This statute introduces a special remedy, as well for ascertaining as for recovering damages for non-compliance with the conditions of an auction sale. It ascertains and fixes the damages to be the deficiency which may happen on the re-sale; and gives the vendue-master an action to recover them. No action is given to the owner. It would be contrary to the well settled rules for the construction of statutes, to maintain that the Act compels the owner to resort to the remedy it provides, and deprives him of his common law rights and remedies against a purchaser who does not comply with the terms of sale. That such has not been the construction appears from the very many cases in which the owner brings the action in his own name, and is conceded in this case, when no exception is taken to the owner being the plaintiff. Since the action by the owner is not given by the statute, and he cannot and does not use the special remedy it provides, he is not required to comply with its. conditions. The exception, then, that, in this case, seven days notice of the re-sale was not given, even if that were the fact, would have no application.

The construction which gives to the vendue-master, alone, a right of action, under this statute, is confirmed by the eighty-ninth rule of court, made in pursuance of the power conferred on the Judges by the Act, to adopt rules and regulations for expediting the progress of the suit. The rule is confined to actions already commenced or to be commenced by vendue-masters, under the Act of 1785, against purchasers at their sales.” That the owner is not deprived of his common law remedies, is supported by the greatest authorities : — “ although a statute does not take away the common law, it is nevertheless binding; and a party may take his election to proceed under the statute, or at common law2 Inst. 200. If a new remedy be given by statute in a particular case, this shall not be extended to alter the common law, in any other than that case ; Foster's case, 11 Rep. 59. “ When a statute alters the common law, the meaning shall not be strained beyond the words ; except in cases of public utility, when the end of the act appears to be larger than the enacting words.”

The next objection is, that the jury were instructed, that under the circumstances of this case, the plaintiff had a reasonable time within which to cure the defect of title to one of the slaves.

The terms of the sale were, one half cash, and the balance payable in twelve months; and that, until the papers were perfected, neither cash nor interest would be required. This was notice to the purchaser, that some time might be necessary to the completion of the sale, by the delivery of the papers. In seventeen days after notice to the plaintiff of the defendant’s objection to the title, it was perfected, and the negroes tendered to the defendant. This the jury have found to he reasonable time. Time does not appear to have been material to the contract. The purchase was not of the ordinary subjects of merchandize and speculation, and the defendant has not shewn that he suffered any prejudice by the delay.

The only remaining ground of appeal is, that the plaintiff tendered to the defendant a bill of sale, from the guardian of the infant to'whom one of the slaves belonged, and not her own bill of sale. No objection is made to the sufficiency of the title, nor to the effect of the bill of sale to transfer to the defendant a perfect right to the slave. It is only objected, that the bill of sale was not immediate from the plaintiff. It is sufficient, if the vendor procures a good title to be made to the vendee, for the subject of the contract. If one agrees to sell another’s property, without any authority to do so, and the owner confirms and offers to execute the agreement, the vendee cannot refuse to perform his contract, because the vendor, at the time he made the contract, had no authority from the owner to make it. The subsequent ratification confirms the authority, ab initio, and validates the contract. It was so held in Maclean vs. Dunn & Watkins, before cited. The motion is refused.

Richardson, O’Neall, Evans, Butler and Ward-law, JJ. concurred.  