#### Brittain v. Smith

From Buncombe.

A. sold to B. a negro boy defective in his eyes, and it was afterwards agreed between the parties, that if A. who was going to Charleston should bring back with him a negro boy, he would let B. have him, and would take back the defective negro. A. did bring back from Charleston a negro boy, and sold him to a third person. In an action brought by B. against A. on this agreement, it was held, that the delivery of the defective negro was to be an act concurrent with the delivery of the one brought from Charleston, and that neither party could sue upon the contract, without averring and proving a tender or readiness to perform his part.

This was an action of 'assumpsit, and the declaration contained two counts •, the first, framed on a warranty that the sight of a negro boy would not be lost or destroyed by a disease with which they were affected, and the second, on a mutual promise to exchange negroes.

The evidence was, that the Plaintiff being about to pui’chase a negro boy from the Defendant, wisiied him. to warrant that a defective eye which the negro had, would not become perfectly sightless ; and to Plaintiff’s request, Defendant replied, “ there is no doubt of the eye, in my opinionthe Plaintiff then took the boy and gave g.400 for him. The disease increased upon the *573eyes of fíifi hoy until ha became cr small value, wheat the Lfo>idn,ni, who was on his way to Charleston, slopped ,Lf iik* l'iwjurtiC’s house, and there, together with Iho I'hi'iVíiC üNiifsiÉíKrf the negro*» eyes. Plaintiff asked Defendant ií ha intended to bring negroes back with him from i!hr ?'L?r;:oü, and understanding that ise did, it was íiPjj'üíd ix*i Neen 'he, parties, that H’ Defendant biaught back a negro boy wito hita, he would leí. the Plaintiff have him, and take back the blind one, if tho boys were of equal si'-se; but should the boy brought from Charles-ion be the iiti-ger, then PlsintiiF was to pay Defatutant the diSbroitco Iu value, considering both boys sound. IíeíV'í¡ík:«¡. did bring back another boy and Bold hiss to a third person | I'ltdtuifiT thereupon brought suit, but made no tender of the i*. iVclive boy before isssjlsig his writ.

The Jury, under the charge of the Court, found that there *,v¡rs ho warranty as laid in Ihe first coni;!, fast that iiie Defendant did assume, as charged in tie' second, and gave damages for the Plaintiff íhiyé A r;-w trial was moved for and refused, and judgment relieved, whereupon Defendant appealed,

Gaston, for the Defendant,

contended, dut in thiw case, tho acts to be performed were' concui-mtt, ami therefore that tho party suing for noa-performancc, should aver and show an offer r.n his pare to perform.— (CaUmeU v. Briggs* 1 Satit. 112 — C-oodiacA v. ,ffunn, 4 Term Itep, 761 — Mtrhm v. Lamb* 7 2bhL 125 —Jones \\ Barclay, ihag. 684 — Luacion v. ilobumn, Ibid. 620.)

It is true, that the action m'gbt be supported, if Plaintiff, ready and willing to perform bis part of tie. cost-tract, requests Defendant to perform his, and DAVyui' »nt refuses j — (l Chilly PI. 3 J 7-18 — 1 East. 20.'?.,) but when the act is to be pot forme.' on request, such symst must be dated and proved. — (Jttrfcs v. Trippei, i riamd* SS — Bafih x, Owen. s Term, Rep. 409 — 4 Chilly PL Sgft-3.

*574The exchange, in this case, was to take place on request, no time was fixed, and in such case each party had his lifetime to do it in, unless quickened by request. — (Co. Lit. 208 a.)

Wilson, contra,

said, that neither notice or request was necessary, to sustain this suit $ the promise, and not any prior performance by' the Plaintiff, gave him a right of action ,• it was the case of an independent contract on the part of the Defendant, and could not at all he affected by tiie circumstance of a request. The thing to be done, was as well known to the one party as to the other. — .(1 Ld. Hay. 1126,'Smith v. Gaffe.}

If the declaration states, that Plaintiff was willing’ and ready and offered to exchange, it is sufficient. — (6 East. 561 — 2 Pos. and Pull. 447 — 1 Sannd. 320, n. 4— 3 Ibid. 352, n. S..) If this suit had been brought before the sale of the negijp by Defendant, a request would be necessary,- but, after that sale, a request was perfectly nugatory, for Defendant had himself put It out of his power to comply with Ms contract; and it is no answer to say, that he might have again obtained possession of the negro and complied with his contract. No such fact appears from the case.

Gaston, in reply,

insisted again on the necessity of an offer on Plaintiff’s part to perform, and the prior sale by Defendant, he said, could not dispense with the necessity of such offer ; for, from the case, it did not appear.that this particular boy brought from Charleston should be exchanged, but any negro might be substituted for him.

Taylor, Chief-Justice.

The contract between these parties, if there be one, was, that if the Defendant brought back a negro boy with him from Charleston, he would let the Plaintiff have him in exchange for the de-*575lectivo one. The Defendant did bring a boj bar!;; and iiíc question •«, whether fhe Plaint id" caa sao hkia wñh-out avnrlnfc and proving that ho tendered the boy to the Defends.•*«. or that bo was discharged from a by the act of the Defendant?

It is evident that the acts to bo done respectively by the iCkisiüír and Defendant were mutual, and were to bo performed at the same tíme. The coushlersthm of the Defendant5» promise, was net the Plaint» íTg promise to deli ver the defective negro, bin an ¡stcíwii delivery or a legal discharge from it. In such cases, it is essential that fhe J’húJitífí'aver bin readinen.) 10 perform his part, and either shew that the CVf,«asían* neglected to attend, when accessary, or refused is perform his pari, or discharged the íi'laáiíüíí' from the- performance.- (2 Saunders 352 n. 3. The delivery of the defective migro, was to be an act concurrent with the delivery of the one brought from Charleston, and neither party could sue apon this contracts without averring and proving a tender or readiness to perform bis part, it certainly was not tito intention of the parties, that the Defendant should deliver the negro, and trust to the Pontiff’s giving him the other at some future time. The Plaintiff is siappos-ed to declare against the Defendant, without shewing that he was ready to perform his part cf the agreement, and the Defendant answers, “1 brought a negro boy from Charleston, End 3 did not «Idi ver him to yon, because yon. do not say that roa were ready to deliver the defective negro to me j and if yon were not ready, I am not hound to deliver mine."’ If the Plaintiff has any excuse for the. non-performance of his part of the contract, it ought regularly fo be. stated in the declaration and for the furtherance of justice, as no declaration is sent up, we ore disposed to consider oho as filed, suited to the truth of the case. The case slates, that the iie-fendant sold the boy he brought up before the suit way brought: hut bow long he kept him in possession, or *576/whether he soM him as soon after he came from Claries-ton as to render a tender nugatory on the part of the ,mJ " Plaintiff, cannot be collected from the case.

It is true, that after a verdict, the omission of a tender, or of an excuse for not tendering, may, in some cases, be aided by the common law intendment, that every thing may be presumed to have been proved which was necessary to sustain the action, since a verdict wii! cure a case defectively stated. But in this case, such a presumption would he contrary to the fact stated in the case, that (t the Plaintiff did not tender the defective boy to the Defendant.” Whether he had a legal excuse for not so doing, we are not sufficiently informed with facts to enable ns to decide. It can only be said, that such facts do not appear. There must be a new trial.

Made and Henderson, Judges, concurred.