#### John Parkerson *v.*L. J. Dinkins.

The vendor of a negro, though he sell as the agent merely of the owner and without any express warranty, is liable to the purchaser upon the *implied*warranty of soundness, where he has received notice of the unsoundness and the negro has been tendered back to him, before he has paid over the purchase money to his principal: and in such a case a count for money had and received will be sufficient.

This case was tried in the City Court before his Honor the Recorder, at April Term, 1838.

The following is the report of his Honor the Recorder: “ This was an action of assumpsit to recover the difference on a resale of an unsound negro on the implied warranty. The certificate of Dr. Horlbeck was received in evidence by consent. James White sworn: said he called with Parkerson on Dinkins: he tendered the negro back and notified him that the negro was unsound. Parker-son paid to Dinkins $520 for the negro in his presence. Witness was the agent or friend of Parkerson in purchasing the negro. — ■ When Dinkins was informed that the negro was unsound, he admitted that he had not remitted the money to his principal'; and said that he would retain it until Bulger his principal should execute a bill of sale with a warranty. Parkerson notified Dinkins that he looked to him alone and not to hj.s principal. Parkerson knew nothing of Bulger in the business; but Dinkins only. Witness considered the amount paid a sound price: would not have given more. On his -cross examination, he said that Dinkins stated he was only agent, and knew nothing of the negro; said he would retain the money until Parkerson was satisfied. The defect in the negro was discovered in a few days. He said Bulger his principal was to come to town in a week or two: he did come. ' Witness knew he was in town: boarded at the same house with him. Parkerson also knew he was in town. Before the purchase was effected, the negro was examined twice; thinks Parkerson took the negro home on one occasion before the purchase. Witness regarded Dinkins as the agent of Bulger. Dinkins said his instructions were to sell *186for cash. The sale was in July or Aug., 1837. Thos. N. Gadsden proves the account sales: On being asked whether negroes sold as unsound, did not on that account sell very low, he said some persons will run the risk and give a large price, while others will give very little. The prices of negroes, he said, vary very little during the summer. Dr. Horlbeck sworn: said he was requested by Parkerson to examine the negro and did so; she had a limp in her gait, produced from an enlargement of the tendons of her ankle. She was as much cured as she could be ; she might have temporary relief; would not have purchased her as a sound negro ; the limp could be hardly perceived in her coming towards you. She said she was unable to attend to her duties about house. She was deformed; clearly visible to any one who would examine ; very bow-legged. The swelling appeared to be the enlargement of the bone; a person conversant with the subject could have perceived it. Dr. A. G. Howard examined the negro and thought it a case of rheumatism: stated at the time to Mr. Parkerson that she could be cured: he regarded the case as curable: she certainly was not healthy. Thickening is one of the terminations of rheumatism. The swelling was not very large: it was the thickening of the integuments ; and not very perceptible. Examined with Dr. Horlbeck, and differed with him. She said she had runaway, and took a cold, and that the swelling arose from that. He said if he wanted a negro for a plantation, he would not have made $50 difference in her value for this defect; but would not have such a negro about.him at all. Says it was chronic rheumatism; it appeared she had not been treated for it at all. A person not in the habit of observing such matters, would not have perceived the defect; she would have required medical treatment; thinks that Bulger, at the time she was examined, offered Parkerson to have her cured. James White recalled: Said before the purchase was closed, he observed' to Dinkins that the negro had an awkward gait; his impression was that it was the gait of a country negro. Dinkins said, there is the negro, examine her, I know nothing of her. Here the testimony closed. I charged the jury that if they believed, from the evidence, that a sound price had been paid, and that the negro was so unsound at the time of sale, as materially to *187affect her value, and that the plaintiff did not buy with a knowledge of the fact, he was entitled to recover. I charged that, though the defendant sold as agent and disclosed his principal at the time, yet as he admitted he had the funds in his hands and promised to retain them until the plaintiff was satisfied, he was liable, if the plaintiff in.other respects was entitled to recover. I omitted to state that the defendant’s attornies, at the close of the evidence on the part of plaintiff, moved for a nonsuit on the ground stated in his notice of appeal, which I refused.”

The jury found for the plaintiff.

The defendant now moved to set aside the verdict, and renewed his motion for a nonsuit on the following ground: 1. That the defendant sold as an agent only, and having disclosed his principal at the time of the sale, he cannot be made liable upon the implied warranty of soundness. And failing in the motion for a nonsuit, moves for a new trial on the same ground and also on the following grounds: 1. That the implied warranty was rebutted by the proof which came from the plaintiff’s own witness, that the plaintiffhad notice of the supposed defect before the purchase, and that the defendant refused to warrant; and that his'Honor ought, therefore, to have charged, that the plaintiff having purchased without warranty, was bound by his contract. 2. That even if there were a warranty of soundness, there .was no proof of such unsoundness as amounted to a breach of the warranty; and particularly no proof of unsoundness so materially affecting the value of the negro, as to entitle the plaintiff to rescind the contract. 3. That the verdict was, in all respects, contrary to law and the evidence.

Curia, per Richardson, J.

The jury have settled the facts of the case : 1. That the price of the negro was her full value — upon this fact the warranty of soundness followed, by the law of numerous adjudications in South-Carolina. 2. That the negro was unsound at the time of sale. — This fact renders the vendor liable to the purchaser by the same adjudications. It remains to be considered only, whether Dinkins, the agent of Bulger, the owner of the negro, was liable under the other facts of the case. These facts were as follows: Dinkins sold and warranted .the negro, as the agent of Bulger; received the purchase moneyj and before he paid it over to Bulger was notified that the negro was unsound. Par-*188Person tendered her to Dinkins and said he would hold him responsible. Dinkins replied he would keep the purchase money until Bulger should execute a bill of sale with a warranty, “ until Parkerson was satisfied.” If Dinkins (being plainly amere agent) had in the meantime paid over the money to his principal without notice, he would have cleared himself of personal responsibility.— Ash v. Livingston, 2 Bay. Rep. 80; Waddel v. Mordecai, Riley’s Coll. 17. But when Dinkins had received timely notice that he would be held responsible, and Parkerson had tendered the negro to him on account of a supposed breach of the implied warranty of soundness, the contract was rescinded, provided Parkerson verified the allegation of unsoundness. From that moment Dinkins stood as a provisional stake-holder; and the general count of indebitatus assumpsit against him for money had and received, was competent, and the proper form of action. This proposition is well established in Ashley v. Reeves, 2 M'Cord. 432; Wharton v. O'Hara, 2 M'Cord. 65. The principle is, that where a contract is rescinded, the partiés stand as if no contract had been made. — And for him who offers to rescind and put the parties in statu quo, and who also proves that he had a right to rescind, the same right of action arises as if there had been a mutual rescisión. This position stands upon plain principles, and has been established in the cases of Byers v. Bostwick, 2 M'Cord. 75; Hughes v. Banks, 1 M’Cord. 537. When, therefore, in addition to the timely notice and tender made to the agent, Parkerson satisfied the jury that the negro was unsound at the time of the purchase, his right to recover the money received of him by Dinkins was made clear. If there had been no tender of the negro, the form of the declaration must have been upon the implied warranty ; and if the merits of the case would not allow a recovery under that special form, there could be none upon the general count for money had and received. •

*jBailey, Dawson*& *Brewster,*for the motion.

*Thompson,*contra.

The motion is refused.

Gantt, O’Neall, Evans and Butler, Justices, concurred.— Earle, J., absent at the argument.