#### William Robertson *v.*David Montgomery.

In an action of assumpsit, for the price of two negro slaves, alleged to have been sold by the plaintiff to the defendant, it appeared that the plaintiff had, previously to the bringing of this suit, brought an. action of trover against the defendant, for the same negroes, in which the jury had found a verdict for the defendant. The sale, upon which the plaintiff relied in this case, appeared to have been made before the action of trover was commenced. Held, that the former recovery in trover, by the defendant, was no *bar*to this action; and the jury, having found for the plaintiff, the court refused to grant a new trial.

Earle and Butler, Justices, dissenting — on the ground of the incompleteness of the evideuce of sale, and on the fact that the plaintiff had brought trover for the same negroes, thereby disavowing a contract of sale.

*Before O’NEALL, J„ at Fairfield, Fall Term,*1838.

This case came up on a motion for a new trial. The report of his honor the presiding judge is as follows: “ This was an action of assumpsit, to recover the value of two negroes, (Bill and Braxton,) sold, as it was alleged, by the plaintiff to the defendant. It appeared that about January, 1833, the defendant sold to the plaintiff the negroes, for $850 ; he paid on account of the purchase, (January, 2, 1833,) $150 ; for this sum the defendant on that day gave to the plaintiff his note. The plaintiff paid on a debt of the defendant’s, and by his request, $16 25 to Mr. Noble; the defendant is indebted to the plaintiff for leather, $14 50. The negroes were in the plaintiff’s possession two years ; at the end of that time, they returned to the defendant’s possession, whether under the contract spoken of hereafter, or before it, did not appear. Charles Bell, Esq. proved that the plaintiff came to his house, and asked him to go with him to Monticello, to see the defendant on the subject of these negroes. He went. The defendant said, his son, who had gone to the western country, needed negroes, and he (defendant) wished *88these negroes back, at a fair valuation. The plaintiff said he would name the plaintiff’s own brother, Hugh, to fix the valuation : the defendant said they could arrange that afterwards. Nothing further was done or said in his presence. He said these negroes are the same mentioned in an action of trover, brought by this plaintiff, against this defendant, in which the verdict was for the defendant; and that the contract he proved was before that suit was brought. — The hire of the negroes, while in the plaintiff’s possession, was shewn to be worth about $312 ; their value, at the time the defendant got possession, was proved to be about $1750. The defendant gave in evidence the record in the case of this plaintiff vs. this defendant, trover for the slaves: verdict for the defendant. He *also*proved a discount of $143 60, for work done on a house for the plaintiff. I thought, and so instructed the jury, that the recovery in trover was only conclusive of the question of title to the slaves, in the defendant. Notwithstanding, it might well be, that the plaintiff, before that suit, had sold the slaves to the defendant. It was, however, a circumstance which might satisfy them that the plaintiff did not sell. For if he had sold, he would hardly have brought trover for the slaves.

The question of the sale, as a matter of fact, was fairly submitted to the jury. Having tried the former case, I had a strong belief and impression, from the facts then proved, that if the sale was set up, injustice would be done to the defendant; and with that belief, I have no doubt, that I gave the defendant the benefit of every thing in this case which ought to operate in his favor. The jury found for the plaintiff, $527 15, which was the balance due to the plaintiff, rating the negroes at $1,438, and adding thereto the plaintiff’s payments, to and for the defendant, and the defendant’s indebtedness to the plaintiff, $180- 75, and deducting therefrom the purchase $850 — interest on $700 not paid, for two years, $98 — and the plaintiff’s discount, $143 60. With the verdict, I have no reason arising out of the facts proved in this case, to say that I am dissatisfied.”

The defendant moves for a new trial in this case, on the following grounds: 1. Because, the evidence adduced on the part of the *89plaintiff, clearly proved that there was not a complete contract entered into between the plaintiff and defendant, for the re-sale of the negroes ; and that what did take place between them on the subject, even if understood by the witness, only amounted to an offer, or proposal. 2. Because, there was no evidence that the proposition to re-purchase was ever consummated by the parties; but on the contrary, there was conclusive evidence, that it was not, by the plaintiff’s bringing an action of trover against the defendant for said negroes, after said supposed contract was entered into. 3. Because, there was not a tittle of evidence to establish the fact, that the negroes went into the possession of the defendant, and which was relied upon by the plaintiff as a consummation of the supposed contract, after the time, it was testified to have been made ; but on the contrary from the evidence of the case, it was clear the defendant had said negroes in his possession for a month and upwards, before the said conversation respecting the re-purchase of the negroes took place. 4. Because, the verdict of the jury in favor of defendant in the raction of trover brought by the same plaintiff against the same defendant for the recovery of said negroes, was a bar to the plaintiff’s recovery in the present action; and the jury ought to have been so instructed by the court. 5. Because, from the circumstances connected with the pleadings on the part of the plaintiff, it is manifest that the plaintiff himself did not regard what had taken place between himself and defendant as amounting to a sale of said negroes from him to defendant.

Curia, per O’Neall, J.

The former recovery by David Montgomery ads. William Robertson, cannot bar this action. In that case, the title to the slaves was the issue : in this, their value on a sale from the plaintiff to defendant before the former suit, is sought to be recovered. This action admits the title found by that verdict to be-in the defendant, and is therefore consistent with it. If it sought to recover the price of slaves sold by the defendant before the former recovery, and the plaintiff’s right to recover depended on his title to the slaves, then the recovery in trover would be a bar to the second suit, in another form, for sub*90stantially the same object. But here, *the*plaintiff contends that he is entitled to recover an amount which he alleges, and which, the jury have found, that the' defendant ought to pay on his contract, to buy the said slaves at a fair valuation, before the former suit was instituted. It may be, for aught which appears, that the defendant succeeded in the former case, on the ground that he had bought the slaves from the plaintiff. If that was so, there would not be two opinions about his right to be paid the price. The possibility that it was so, has been turned into a certainty by the verdict of the jury in this case, finding that a sale was made before the former suit was instituted. The question of a sale of the negroes by the plaintiff to the defendant, was one of fact merely. The witness, Charles Bell, proved the agreement to buy at a valuation; subsequent to this, the negroes are found in the possession of the defendant. — Putting the contract to buy and the subsequent possession together, the fact of a sale is made out. That the slaves were not valued by persons selected by the parties, is no objection to the recovery here. On the proof of the sale made and no price fixed, the plaintiff was entitled to recover as much as the slaves were worth. The jury were to fix that: and have done so by their verdict. My knowledge of the facts proved in the former case, in trover, between these parties, cannot aid the defendant. If he wished the benefit of the testimony which he then adduced, it was his business to reproduce his witnesses: and in this case, to prove- by them the facts to which they before testified. Having failed to do so, he can have no benefit in any shape, from my remembrance of the former testimony. For as a witness, I could not speak of it: and if it were offered as testimony, could not be heard. I should be ashamed of my weakness if, as a judge, I supposed it to influence my judgment on the case before me.

The motion is dismissed.

Gantt, Evans, and Richardson; Justices, concurred.

Earle, J.,

dissenting. I think the verdict should be set aside, as unsupported by proof. ' A proposition to purchase by one,,and *91an assent to sell by another, do not make a contract; and here there is nothing more. There is no stipulation as to price; no valuation by the proposed referee; no time, nor mode of payment; and no satisfactory evidence of a delivery of the negroes, in pursuance of the contract of sale. Under such circumstances, I think, the jury should not be encouraged to find verdicts on vague presumptions. The fact, that the plaintiff had brought trover for the same negroes, thereby disavowing a contract of sale, ought to be conclusive against him in this action.

*Clarke*and *M’Dowall,*for the motion.

*Buchanan*and *Gregg,*contra.

[In this dissenting opinion, Butler, J. concurred.]