#### OLLEN MOBLEY v. JOHN A. FOSSETT.

Where an agreement in writing was made for the- exchange of slaves, and one of the parties afterwards refused to complete the contract, itwashdd that the latter might, maintain an action of assumpsit on the special agreement.

' This was an action of Assumpsit in which the plaintiff declared upon a special agreement for the exchange of slaves. On the trial at Sampson, on the last circuit, before his Honor Judge Dick,, the proof was as follows: — The defendant being the owner of a slave by the name of Squire, wrote a letter to the plaintiff proposing to exchange Squire with him for either one of two slaves belonging to the plaintiff, by the names of Sam and Balaanc, if the plaintiff would carry one of said slaves to the defendant at Hillsborough. The plaintiff immediately agreed to the proposition, and sent an agent with the slave Sam, and also a bill of sale for him to the defendant, and a letter informing the defendant that he, (the plaintiff) accepted the offer made. The agent on his way met with the defendant in Raleigh, and -handed him the plaintiff’s letter, and at the same time tendered to him; *97the slave Sam, with the bill of sale, and offered to liver Sam either at Raleigh or Hillsborough, and receive in exchange the slave Squire, according to the agreement. The defendant then refused to take Sam, and.declared that he would not receive him at any place, nor would he deliver Squire. Upon this evidence the Judge directed a nonsuit, on the ground that the plaintiff had misconceived his action- — that he ought to have brought either trover or detinue: whereupon the plaintiff appealed.

where a party is bound by his agree-make'a ‘cnnr¿[i(?|fe at a parti- and'the06’ othel Party apprises him that he reive the6” au'ft'dfs-penses with the necessity of s!is

June, 1838.

Strange, for the plaintiff.

No counsel appeared for the defendant.

Daniel, Judge.

After stating the case, proceeded as follows : — The mode of contracting for this species of property, prescribed by the act of 1819, (1 Rev. stat. c. 50. sec. 8,) that is, in writing signed &c., was complied with by the parties. The defendant’s positively refusing to take the ic i. i , , P „ , slave Sam at all, dispensed with the necessity oí a tender of him at Hillsborough, 2 Stark. on Ev. 778. Whether the plaintiff had a right to bring trover or detinue, it seems to us, not necessary to determine; for if he had, he might waive such right, and bring assumpsit to recover damages for a refusal to deliver Squire according to the contract when de- ..... . . manded. Mr. Starkie in his treatise on evidence (2 vol. 886,) says, “ An action by the vendee of goods, is either on a special contract for not delivering the goods, (assumpsit;) or of detinue; or of trover for a conversion; or of money had t • j • -, j ' and received upon a rescinded contract; or upon a warranty,” Here, the plaintiff elected to bring assumpsit, and to declare on the breach of the special contract to deliver the slave Squire. We think the action was sustainable. The nonsuit must be set aside, and a new trial had.

Per Curiam. Judgment reversed.