Mobley v. Fossett

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., ch. 50, sec. 8), that is, writing signed, etc., was compiled with by the parties. The defendant's positively refusing to take the slave Sam at all dispensed with the necessity of a tender of him at Hillsborough (2 Stark. on Ev., 778). Whether the plaintiff had a right to 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 demanded. 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not delivering the goods (assumpsit), or of detinue; or of trover for a conversion; or of money had and received upon a rescinded contract; or upon a warranty."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 sustainable. The nonsuit must be set aside and a new trial had.

PER CURIAM. Judgment reversed.

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