
    
      Andrew Bunch vs. William Smith.
    
    Plaintiff sold to defendant four negroes, giving him a bill of sale, and talcing from him notes for the price; immediately upon their delivery, and in the presence of the parties, Bob, one of the negroes, committed suicide; under some mistake as to the facts, or the rights of the parties, the notes were returned to defendant, and the bill of sale to plaintiff, and a new contract entered into and executed for the sale of the other negroes; plaintiff, afterwards, brought indebitatus assumpsit to recover the price of Bob; held that, in that form of action, and upon a count alleging a sale and delivery of Bob only, he was entitled to recover.
    
      Before Frost, J., at Orangeburg, Spring Term, 1851.
    The report of his Honor, the presiding Judge, is as follows: “The declaration in assumpsit contained a special count, which alleged that the plaintiff had sold a slave, Bob, to the defendant, in consideration of a note of the defendant, to be delivered to the plaintiif, for $450 ; and the breach was charged in the non-delivery of the note. Another count was indebitatus assumpsit, ‘for a certain other negro named Bob,’ sold and delivered.
    “ It appeared that the plaintiff and the defendant had agreed, at the house of the defendant, on the 14th November, 1848, for the sale of Bob and Binah, and her two children, provided Dr. Gilmore, who had possession of the slaves under a contract for hire, for that year, would release his contract, and deliver possession of them to the defendant. The price was $1100. Smith had executed and delivered to Bunch his notes to that amount; and Bunch had given to Smith a bill of sale of the slaves. The bill of sale, as it was called by the witness, was not produced; and it did not appear whether it was a specialty or not. The parties set off to Gilmore’s, and' the defendant ordered his cart to be sent after them, to carry the negroes home. When they reached Gilmore’s, Smith told him of the agreement, and of the condition; and Gilmore told them they might consider the slaves released from his contract of hire. Smith then stepped up to Bob, and asked Bob how he would like him for a master. Bob said he would not suit. Smith replied to Bob, ‘ I have not come to consult you ; I have bought you ; and if you run away, from January to January, you are mine,’ and advised Bob to reconcile himself to the change, and give him no further trouble. Soon after, Bob, having finished a job at which he was engaged, got up, and was walking towards his house, when Smith advanced to him, and said to Bob, ‘ it is of no use for you to ran, for I have my dogs, and can catch you.’ Bob replied, that he would ran from no man. Smith spoke a word of encouragement to him. Bob went to the negro house ; Smith waited awhile, until the cart came. He then ordered Binah to go and get ready; that he wanted her master, while they were there, to deliver them to him. She went to the negro house ; Bob was standing at the door; Smith ordered Bob to go and get ready. He walked off, as if going round the house; Smith called to him, and he went into the house. Smith, Bunch and Gilmore were standing near the door, when Bob came out of the door with his throat cut, and bleeding ; he made a few turns in the yard, fell on his knees, sank to the ground, and there bled to death. When he came out, Smith told Bunch he had better get the doctor. After the negro was dead, Smith said to Bunch it was no trade ; to give to him, Smith, his notes, and he would give back to Bunch his bill of sale, and drew the bill of sale from his pocket. Bunch hesitated and said, he was not aware whose loss it should be. Smith said to Bunch, it is your loss; the negroes were not delivered. Smith then returned to Bunch the bill of sale, and Bunch returned to Smith his notes. A new trade was made for Binah and her two children, for f650. The parties went where the negroes were, and they were delivered. Smith then gave to Bunch two of the returned notes, as security, until the necessary papers should be executed and delivered. After the agreement was thus made, the parties went to the house. Smith said to Bunch, it would be as well to arrange the papers while they were all present. Bunch said to Smith, he would like to have the purchase money paid in cash, or that defendant would let him have his negroes back. Some conversation ensued. Smith said to Bunch, that is not the trade ; the terms are agreed on. and if you are not disposed to give me a bill of sale, I can make you do it. That ended the controversy. The bill of sale and notes were drawn, and mutually delivered. The afternoon after Bob cut his throat, Gilmore said to Bunch, it was a pity the negroes had not been delivered, when he, G., released his hiring ; and two or three times during the evening Bunch expressed to Gilmore his regret that he had not delivered the negroes when they first came up, and they were all in the yard. Bob was proved to have been worth $450.
    “ There was some evidence that Bunch was of a temperament to be agitated by the shocking spectacle of Bob’s death. This evidence was offered with a view to weaken, if not subvert, the effect of the mutual return of papers, after the death of Bob.
    “ The defendant offered no evidence. When the plaintiff’s case was closed, a motion was made for a nonsuit, on the grounds that the action could not be maintained on the common count, because the testimony shewed a special contract; nor on the special count, because there was no evidence that the note for $450 had not been delivered to the plaintiff.
    “ The motion was refused, because a special contract, when executed by the plaintiff, makes the defendant debtor to the plaintiff for the stipulated price or consideration, which may be recovered under the common counts.. And there was sufficient evidence to be submitted to the jury that the note for the price of Bob had not been delivered, from the fact, that the notes which Smith had given for the purchase of Bob and his family, were returned to Bunch after the death of Bob, and from the course of the defence, which denied the defendant’s liability, under the contract, for the purchase of the slaves.
    “ The jury were instructed that the delivery of the bill of sale of Bob and his family, by the plaintiff to the defendant, could not operate as a constructive delivery of possession, because the sale was dependent on the consent of Gilmore, to relinquish his contract for hire; and the agreement of the parties was, by its terms, to be completed by a future corporal delivery of the slaves. It was submitted to the jury to determine whether Bob and his family had been delivered to the defendant, under the original contract, before Bob’s death. The statement of the evidence on this question was strongly opposed to the plaintiff’s right to recover; the inconsistency of a new contract for the sale of the surviving, negroes, after the death of Bob, with the subsistence and continued obligation of the original contract for the sale of Bob and his family, was urged on their attention.
    “The attorney for the defendant argued that the plaintiff could not recover on the special count for the sale of Bob alone, because the evidence shewed a contract for the sale of Bob and his family, and could not maintain the count for a sale of Bob. But the jury were instructed that this objection could not prevail against the plaintiff’s right to recover the price of Bob, if Bob had been delivered to the defendant, because the rescisión of a contract, in part, does not annul the whole contract; and the new agreement for the sale of three of the four negroes, who were the subjects of the first contract, left the original agreement operative for the sale of Bob. Or, if the new agreement did rescind the first, and Bob was actually delivered before the new agreement, then the plaintiff might recover, under the common count, so much as Bob was worth. I thought that the making of a new contract for the sale of the survivors, after the death of Bob, could be available to defeat the plaintiff’s recovery only as it might affect the question of the delivery of the slaves, under the original contract, before the death of Bob. If there had been a delivery to the defendant, before the death of Bob, the property was' changed, and all the negroes transferred to the defendant; and an additional contract was nugatory and senseless.
    “ The jury found a verdict for the plaintiff for $450, with interest, from the 14th November, 1848.”
    The defendant appealed, and now moved in arrest of judgment, for a nonsuit, or new trial.
    
      Glover, for the motion,
    insisted that the plaintiff could not recover on the special count, because it was not proved; and ihat be could not recover on the common count, because there was no proof of delivery. He cited 6 T. R. 320; 1 Strob. 407-396; 1 Chit. PL 334.
    
      Bellinger, contra.
   Curia, per

O’Neall, J.

In this case, the jury having found the sale and delivery of Bob under the first contract, and that that contract was riot rescinded at the time he killed himself, and when another agreement was made for the sale of the surviving negroes, it follows that the plaintiff’s case must be sustained, if his counts in the declaration be sufficient, and are sustained by the proof. Indeed, this was conceded in the argument.

The first count in the declaration for the sale of Bob, and to be paid therefor by a note, may be regarded as special — and in support of it, perhaps, there would be difficulty in shewing the proof to be sufficient. Though certainly all the negroes were to be paid for by the notes of the defendant, and, that arrangement was so consummated, until, on the self-destruction of Bob, the defendant induced the plaintiff to surrender the notes, and take new notes for the survivors. If it were necessary to carefully examine this part of the case, it is possible that enough could be gathered from these circumstances to sustain it.

But it is not necessary to look to that count at all; .the second count is the general indebitatus count for the slave sold.

Mr. Chitty, (1 Plead. 346,) tells us that, “ to maintain a count for goods sold and delivered, it is essential that the goods should have been delivered to the defendant,” “ or that something equivalent to a delivery should have occurred.” Here the delivery has been established to the satisfaction of the jury, and hence the count is very well sustained.

It is no objection to say, that four negroes, including Bob, were sold, and that the sale of Bob is alone counted on. It was ¿ sale of each, and all. The others being paid, or satisfactorily settled for, all that remained was to inquire whether Bob was sold. The count charging the sale of him alone, is very well supported by the evidence that he, with three others, were sold, and that his price, $450, was reserved when he killed himself.

The motion in arrest of judgment, for nonsuit, or new trial, is dismissed.

Evans, Frost, Withers and Whitner, JJ., concurred.

Motion dismissed.  