#### JOHN W. CALDWELL *v.*JAMES S. SMITH.

Where in a contest about the sale and delivery of a slave, it is doubtful from the evidence whether the delivery, which was made, was for the purpose of transferring the property to the vendee, or merely that he should hold as bailee until a sale should be effected by means of a bill of sale, the question should be submitted to jury as one of factfor their determination.

■The act of 1792 (1 Rev. Stat. ch. 37, sec. 19,) applies to a sale between vendor ■ and vendee, although no third person is concerned as creditor or purchaser. Where a sale is made at an agreed price, and the articles delivered do not correspond in *nature*or in *quality*with those contracted for, the vendee has a right to reject the articles altogether, but if he do not, and there is no warranty, the ordinary presumption is that he waives his objection to them, because of their not corresponding with the contract. If from the nature of the transaction, it be not practicable for him to reject the articles altogether — as where they have been used before a discovery of the discrepancy — then, it has been held, he may reduce the vendor’s claim to a *quantum valebaut,*or to what the articles are actually worth. But where the vendee receives the very articles for which he contracted, and there was no stipulation with respect to its qualities, and these were as well known to him as to the vendor, the rule of *ca vcat emptor*applies, and he is bound to fulfill his contract *by*paying the stipulated price.

This was an action of assumpsit brought by the plaintiff to recover from the defendant the price of a negro slave alleged to have been sold and * delivered. *Plea*— non *assum,psit.*

Upon the trial at Rockingham on the last circuit before his Honor Judge Pearson, the evidence was that in the year *651831, one Latta conveyed the slave in question to the plain-tiffin trust to secure and pay certain debts, that Latta and the plaintiff appointed by parol one Donnell as their agent to hire out the slave, and sell him as soon as an opportunity offered; that the negro was hired out by Donnell for the year 1833, to one Forrest, who lived near Hillsbor-ough; that in November of the year 1833, Donnell went to Hillsborough and offered to sell the negro, when the defendant, who. was well acquainted with him and saw him frequently, after much chaffering, agreed to take him, and persons were called upon to bear witness.to the bargain. The price fixed on was #525, payable on demand after the 1st day of January, 1834, with interest from that date : the defendant was to take possession of the negro as soon as his time was out with Forrest, to wit, about the 1st of January, 1834, and was to notify Donnell by letter of his having done so. The evidence left it doubtful whether the defendant was to give Donnell his note for; the price at February Court, 1834, in Hillsborough, or whether Donnell was to take the defendant’s letter as the evidence of the debt. The evidence also left it doubtful whether the parties intended that the sale should be effected merely by the above stated bargain and delivery to the defendant, or whether, besides the sale and delivery by which the parties intended to pass the property, there was an agreement that Donnell was to procure a billof sale from the proper parties and hand it to the defendant, or whether the parties intended to effect the sale by abill of sale to be procured by Donnell from the proper persons, and did not intend that the property should pass by delivery to the defendant, but only that he should hold the negro as bailee until the sale was consummated by the bill of-sale. It was also proved that in November, 1833, Donnell apprised the plaintiff of his having made the trade, and the plaintiff assented to it; that about the 1st of January, 1834, the defendant took possession of the negro, and put him to work at his trade as a blacksmith, and notified Do.nnell thereof by letter, in which he stated that the negro was in his possession, that he “ considered him as delivered,” and was ready to execute his bond according to the contract. It appeared further that soon after February Court, 1834, the *66negro died, and the defendant upon a, demand being made, refused to pay the money or give his note. The defendant’s coun3ef f°r the purpose of reducing the stipulated price, proposed to show that at the time when the defendant *took*the negro into possession, he was in bad health and of little, or no value; but the Court rejected this evidence, there being no suggestion of fraud, or of a warranty of soundness.

*65
      *Dec.*1838.

*66The defendant’s counsel contended 1st, that the evidence if true, did not prove a sale accompanied with an actual delivery so as to pass the title under the act of 1792, (see 1 Rev. Stat. ch. 37, sec. 19.)

2dly, That the act of 1792, did not apply to a sale between vendor and vendee, where no third person as creditor or purchaser was concerned. The last point was reserved with leave to move to set aside the verdict, and enter a nonsuit.

His Honor charged the jury that the property in slaves might be passed in two ways, either by a bill of sale, or by a sale and delivery, and it was for them to decide from the evidence which of these two ways the parties intended to adopt; that if they intended to effect the transfer of the property by means of a sale and delivery, and the defendant took possession of the slave with an intention thereby *to*acquire the property, and make him his own, they would find for the plaintiff-, although the evidence satisfied them that there was an understanding that after the slave had thus been transferred to the defendant, and became his property, Donnell was to procure a bill of sale and hand it to the defendant for the further assurance of his title. But if the evidence satisfied the jury that the parties did not intend to pass the property by sale and delivery, but intended to effect the sale by means of a bill of sale, and that the defendant took possession of the slave as a bailee, to hold him until a bill of sale was procured, then they would find for the defendant. The jury found a verdict for the plaintiff; and the defendant moved for a new trial because of the rejection of his testimony, and also for error in the charge. This motion being overruled, he moved to set aside the verdict and enter a nonsuit upon the question reserved, but this *67motion was also overruled, and judgment pronounced for the plaintiff, whereupon the defendant appealed. •

*W. A. Graham,*and *Badger,*for the defendant.

*J. T. Morehead,*for the plaintiff.

Gaston, Judge.

No error has been shown by the defendant to warrant a reversal of this judgment. The instruction of the Judge was in precise conformity to the doctrine laid down by this Court in the case of *Henry*v. *Patrick,*Ante 1 vol. 358, and the evidence justified that instruction. The testimony offered for the purpose of reducing the stipulated price was properly rejected. There was no warranty of the health of the negro express or implied, and no imputation of 'unfairness in the vendor. Of course the rule of *caveat emptor*applied. The purchaser bought for better for woi’se, and was therefore bound to fulfil his contract. The cases which have been cited in argument for the defendant, whether well or ill decided, do not apply to a sale of this character — but to sales at an agreed price where the articles delivered do not correspond in *nature*or in *quality*with those which were contracted for. In such cases the vendee has certainly a right to reject the articles altogether. If he does not and there is no warranty, the ordinary presumption is that he waives his objection to them because of their not corresponding with the contract. But if from the nature of the transaction it be not practicable for him to reject the articles altogether — as for instance where they have been used before the discovery of this discrepancy-then *according to these cases*he may reduce the vendor’s claim to a *quantum valebant,*or to what they are actually worth. (Stark on Evidence, Vendor and Vendee.) But here the purchaser received the very article for which he contracted — there was no stipulation with respect to its qualities, and these were at least as well known to him as to the vendor. There can be no mo.re reason to discharge him from part of the price because the thing pürchased turned out to be less valuable than was expected, than there could be to charge him with a higher price if it had proved more • valuable than was anticipated. Where contracts are lawful • — and fair — it is the duty of Courts to enforce their execution *68according to the agreement of the parties. The judgment must be affirmed.

Per.- Curiam. Judgment affirmed.