#### Joseph Reddick *v.*Noah Trotman.

From Gates.

Judgment being recovered against B. lie for the purpose of raising money to discharge it, offered for sale at auction a negro slave, and C. became the highest bidder, and the slave was delivered to him ; but he not paying the money on the delivery of the slave, B. by consent of C. took the slave home to his own house, to keep .uajtil the money should be paid. Afterwards B. offered to deliver the slave to C. if he would pay the money, C. refused to pay, and disclaimed all right to the slave. Execution was then sued out on the judgment, and levied on the slave, and at the sale by the Sheriff^ he brought less than the price which C. agreed to pay for him. B. then sued C. for the difference between the sum which the slave brought when sold by the Sheriff, and that for which he was bid off by C. B. cannot recover, because the circumstances show it was the intention of the parties to rescind the contract.

John Co field recovered a judgment against Joseph Reddick, as executor of *the*last will of Simon Stallings ; and Reddick, for the purpose of raising the money to discharge the judgment, offered for sale at auction, a negro slave, belonging to the estate of his testator, for ready money. Noali Trotinan became the highest bidder, and the negro was delivered to him, but he not paying the money on the delivery, Reddick, by his consent, took the negro home to his own house, to keep until the money should he paid. A few days afterwards he called on Trotina» for the money, and offered to deliver the negro if the money were paid to him. Trotinan refused to pay, and disclaimed all right, to the negro. Coficld having sued out his execution, the Sheriff, by the direction of Reddick, levied the same on the negro aforesaid, advertised gmd sold him ; and at this sale the negro did not bring as much by seventy dollars as at the sale when Trotinan bid him off. Reddick thereupon brought this suit, to recover from Trotinan the difference between the sums at which the negro was bid off at the first and se-*166concl *sales;*and it was submitted to this Court to decide, whether he was entitled to recover.

Lqwuie, Judge,

/ delivered the opinion of the Court:

What might have been the right of the Plaintiff to recover damages for the non-performance of such contract, as is stated in the case, had the Defendant kept possession of the negro, it is not necessary now to enquire. The refusal.of the Defendant to pay the money, and the act of the Plaintiff in taking home the negro, show the intention of the parties. By the terms of the sale, the Defendant was bound to pay down the money ,• his be-fcoming the highest bidder, amounted to an undertaking to pay the money on that day. The Plaintiff took the negro home, because the money was not paid, and tfio Defendant’s refusal to pay on a subsequent day, was no breach of his undertaking. But if there could be any doubt as to the legal effect of the Plaintiff’s conduct, in tailing the negro home on the day of sale, his conduct afterwards in directing the Sheriff to levy on the negro as the property of his testator, is sufficient to remove it. This sale was made after the Defendant had disclaimed all title, and shews that the contract had been rescinded between the parties. Judgment for the Defendant.