Agreement — Action.
1. Where an agreement in writing was made for the exchange of slaves, and one of the parties afterward refused to complete the contract: It was held, that the latter might maintain an action of assumpsit on the special agreement.
2. Where a party is bound by his agreement to make a tender of an article at a particular place, and the other party apprises him that he will not receive the article at all, it dispenses with the necessity of making the tender.
DANIEL, J.
After stating the case, proceeded as follows: The mode of contracting for this species of property, prescribed by the act of 1819 (1 Rev. Stat., ch. 50, sec. 8), that is, writing signed, etc., was compiled with by the parties. The defendant's positively refusing to take the slave Sam at all dispensed with the necessity of a tender of him at Hillsborough (2 Stark. on Ev., 778). Whether the plaintiff had a right to to bring trover or detinue, it seems to us, not necessary to determine; for if he had he might waive such right and bring assumpsit to recover damages for a refusal to deliver Squire according to the contract when demanded. Mr. Starkie in his treatise on evidence (2 vol., 886) says: "An action by the vendee of goods is either on a special contract for not delivering the goods (assumpsit), or of detinue; or of trover for a conversion; or of money had and received upon a rescinded contract; or upon a warranty." Here the plaintiff elected to bring assumpsit and to declare on the breach of the special contract to deliver the slave, Squire. We think the action sustainable. The nonsuit must be set aside and a new trial had.
PER CURIAM. Judgment reversed.
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