#### Whitlock Arnold v. Clement Arnold.

Á eontract fairly made,but under a misapprehension of its terms and of the price, will not be specifically executed, unless the defendant by his subsequent act, has ratified it, and thereby made it unconseientious in him to refuse its fulfilment.

The bill was for a specific performance of a contract, for the sale of certain slaves, which was stated to have been to this effect: that the defendant owned a female *468slave, who had then six children, and was expected shortly to have another, and agreed, if allowed to select at liis choice, three of the children to be kept by himself» to sell the mother and the remaining four children, including the unborn one, to the plaintiff, at the price of g 1000 ; whereof, g 100 was to be, and was paid down, and the balance payable upon the delivery of the slaves, which was to be made as soon as the mother should recover after the birth of the next child. The bill and a supplemental bill further charged, that afterwards, the plaintiff paid $300 more on the contract, but that the defendant refused to convey, and had sold three of the children, and another had been sold under execution against him,* and insisted that by such sales the defendant had made his election of the three he had the right to choose, and that the value of the fourth should be applied towards the satisfaction of the purchase money.

The answer admited an agreement to sell, but denied that it was at that price. The defendant stated that he understood the price to be glSOO; but discovering that the plaintiff understood or pretended it tobe glOOO, in a few minutes after making the contract, he declared that he would not comply, and offered to return the sum of glQO then paid, which the plaintiff, insisting on the bargain as claimed by him, refused to receive, and he then deposited it with a third person for him. The defendant stated the value of the slaves to be gl300, and said the subsequent payment of g>300 was on other demands he had against the plaintiff, and he insisted that the contract ought not to be executed, or if executed, that the larger price should be allowed.

The proofs sustained the statement of the bill as to the terms of the contract; but the witnesses all stated that the defendant alleged immediately after it was closed, that he had misconceived it, and offered to return the money he had received, and gave the plaintiff notice that he would not stand to it. Two or three days afterwards, however, upon being assured by a person who was present, that the bargain was as alleged by the plaintiff, the de-endant said he would abide by it, and about a month *469afterwards, received the further payment of jgSOO on it, without objection, or stating that he claimed a larger price than SI 000,and pending this suit he had received further payments, expressing in some of his receipts,that they should be without prejudice. Several witnesses stated that the negroes were worth more than glOOQ.

*Mendenhall*and *Winston*for the plaintiff.

*Nash*for the defendant.

Ruerin, Chief-Justice.

After stating the pleadings and proofs as above, proceeded :

If this case stood upon the original transaction, although the evidence establishes the contract as alleged by the plaintiff, the court.would not give the relief sought. It would be unconscientious to insist on an agreement, into which the defendant had been surprised, and at a price below the *value;*although the inadequacy be not so unreasonable and glaring, as of itself to. prevent the court from exercising this jurisdiction. But the subsequent acts of the defendant ratify the contract, as understood by the plaintiff, independent of his declaration to the witness, that he would comply with it. For he knew how the plaintiff construed the bargain, and in silence received payments from him, which must be taken as giving the plaintiff to understand that he yielded his own objections. In this position of the affair, the want of conscience will be on the other side, if the agreement be not performed, unless the price be altogether inadequate. Upon that point the evidence is, that the price was not the full value ; but no witness says that it was so unreasonably low as to bespeak imposition. Indeed the number and ages of the negroes show that no great advantage could have been made. The plaintiff is therefore entitled to relief upon it. The defendant must elect to take those negroes which he himself sold, and as to those sold under execution, the most valuable must be allotted to him, and the other at the trite value, must be a credit to the plaintiff, against the balance of the *470purchase money. The master must enquire wbat slaves have been thus sold by the do fend ant, or for him,and when, and the value of those sold under execution; and also' take an account of the balance due for the purchase money, computing interest from the time it was payable; and also an account of the hires and profits of the ne-groes, while in the defendant’s possession, making him just allowances for their maintenance, and after taking all the accounts, ascertain- the balance that may be due on the one side or the other.

Per Curiam — Direct an Account.