Mobley v. Fossett , 20 N.C. 96 ( 1838 )

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goods, (assumpsit;) or of detinue; or of trover for a conversion; or of money had t • j • -, j ' and received upon a rescinded contract; or upon a warranty,” Here, the plaintiff elected to bring assumpsit, and to declare on the breach of the special contract to deliver the slave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.