Opinion
December Term, 1823.
A. sold to B. a negro boy defective in his eyes, and it was afterwards agreed between the parties that if A., who was going to Charleston, should bring back with him a negro boy, he would let B. have him, and would take back the defective negro. A. did bring back from Charleston a negro boy, and sold him to a third person. In an action brought by B. against A. on this agreement, it was Held, that the delivery of the defective negro was to be an act concurrent with the delivery of the one brought from Charleston, and that neither party could sue upon the contract without averring and proving a tender or readiness to perform his part.
ASSUMPSIT, and the declaration contained two counts: the first, framed on a warranty that the sight of a negro boy would not be lost or destroyed by a disease with which they were affected; and the second, on a mutual promise to exchange negroes.
Gaston for defendant.
Wilson contra.
The evidence was that the plaintiff, being about to purchase a negro boy from the defendant, wished him to warrant that a defective eye which the negro had would not become perfectly sightless; and to plaintiff's request defendant replied, "There is no doubt of the eye, in my opinion"; the plaintiff then took the boy and gave $400 for him. The disease increased upon the eyes of the boy until he became (573) of small value, when the defendant, who was on his way to Charleston, stopped at the plaintiff's house, and there, together with the plaintiff, examined the negro's eyes. Plaintiff asked defendant if he intended to bring negroes back with him from Charleston, and understanding that he did it was agreed between the parties that if defendant brought back a negro boy with him he would let the plaintiff have him and take back the blind one if the boys were of equal size; but should the boy brought from Charleston be the larger, then plaintiff was to pay defendant the difference in value, considering both boys sound. Defendant did bring back another boy and sold him to a third person; plaintiff thereupon brought suit, but made no tender of the defective boy before issuing his writ.
The jury, under the charge of the court, found that there was no warranty as laid in the first count, but that the defendant did assume, as charged in the second, and gave damages for the plaintiff $492. A new trial was moved for and refused, and judgment rendered, whereupon defendant appealed.
The contract between these parties, if there be one, was that if the defendant brought back a negro boy with him from Charleston he would let the plaintiff have him in exchange for the defective one. The defendant did bring a boy back; and the question is whether the plaintiff can sue him without averring and proving that he tendered the boy to the defendant, or that he was discharged from it by the act (575) of the defendant?
It is evident that the acts to be done respectively by the plaintiff and defendant were mutual, and were to be performed at the same time. The consideration of the defendant's promise was not the plaintiff's promise to deliver the defective negro, but an actual delivery or a legal discharge from it. In such cases it is essential that the plaintiff aver his readiness to perform his part, and either show that the defendant neglected to attend when necessary, or refused to perform his part or discharged the plaintiff from the performance. 2 Saunders, 352, n. 3. The delivery of the defective negro was to be an act concurrent with the delivery of the one brought from Charleston, and neither party could sue upon this contract without averring and proving a tender or readiness to perform his part. It certainly was not the intention of the parties that the defendant should deliver the negro, and trust to the plaintiff's giving him the other at some future time. The plaintiff is supposed to declare against the defendant without showing that he was ready to perform his part of the agreement, and the defendant answers, "I brought a negro boy from Charleston, and I did not deliver him to you because you do not say that you are ready to deliver the defective negro to me; and if you were not ready I am not bound to deliver mine." If the plaintiff has any excuse for the nonperformance of his part of the contract, it ought regularly to be stated in the declaration, and, for the furtherance of justice, as no declaration is sent up, we are disposed to consider one as filed suited to the truth of the case. The case states that the defendant sold the boy he brought up before the suit was brought; but how long he kept him in possession, or whether he sold him as soon after he came from Charleston as (576) to render a tender nugatory on the part of the plaintiff, cannot be collected from the case.
It is true that after a verdict the omission of a tender of an excuse for not tendering, may in some cases be aided by the common law intendment that everything may be presumed to have been proved which was necessary to sustain the action, since a verdict will cure a case defectively stated. But in this case such a presumption would be contrary to the fact stated in the case that "the plaintiff did not tender the defective boy to the defendant." Whether he had a legal excuse for not so doing we are not sufficiently informed with facts to enable us to decide. It can only be said that such facts do not appear. There must be a new trial.
HALL and HENDERSON, JJ., concurred.
PER CURIAM. New trial.