Eppes v. . McLemore , 14 N.C. 345 ( 1832 )

A verdict was returned for the plaintiff, and the defendant appealed. I suppose the first instruction prayed on behalf of the defendant to be correct, as far as respects the vesting of the legal title in Johnston by the purchase in his own name, and his becoming responsible to the sheriff for the price, notwithstanding the previous agency undertaken by him. If he chose to violate his engagement and take the title to himself, he might do so. But if he did, that did not prevent a subsequent sale to the plaintiff, and that brings the question to the last part of that instruction, and to the next as asked for, which is, that the (347) evidence did not establish a sale from Johnston, or that the legal title passed from him in any way.

The Court is of opinion that the jury might find that it did. The possession of the slave was transferred to the plaintiff, who offered to pay an ascertained price, which Johnston agreed to accept. It is true, the witness says this was in reference to the previous agreement of Johnston to buy the negro for the plaintiff, and therefore there was then no proposition about the price. But although the plaintiff claimed upon the score of the agency, because she did not know that the purchase had been made in Johnston's own name, yet when Johnston acquiesced in it, and made the plaintiff believe that she had thus the title in one way, when in fact she was getting it in another, the plaintiff's mistake as to the mode in which it passed shall not prevent her from acquiring it in any mode, if the acts then done, in their legal operation, passed the title of themselves. Did the plaintiff and Johnston then consider that the right to the slave was in the former, by virtue of what was before and then done? Was everything done that was expected or intended to be done to vest the title in the plaintiff, and was this followed or accompanied by actual delivery? If so, it is a sale, It is an agreement that the property is, or shall be another's, and that agreement consummated by delivery. Suppose Mrs. Eppes had then paid the price, would anybody doubt the character of the transaction? Her agreement to pay is the same thing, if taken by the seller in place of the money, and such the witness said was the fact — upon the conflicting testimony, it was for the jury to determine. Taking that offered by the plaintiff to be true, there was a contract of sale, which, accompanied by possession, is an executed contract and valid. (Choate v. Wright, 13 N.C. 289.)

PER CURIAM. Judgment affirmed.

Cited: Thompson v. Bryan, 46 N.C. 342.

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