Janin v. Franklin

The facts are stated in the opinion of the court, delivered by Martin, J. The plaintiff is appellant from a judgement of nonsuit, the first judge having been of opinion that in an action f°r the rescission of the sale of a slave, on the grounds of his being without the qualifications, which he had been stated to ° . „ , - , . , , possess in the bill of sale, and which were the principal inducement which determined the vendee to purchase, a tender of the slave must be proven. We think the district judge did not err. Till the vendee offers to return the slave, he cannot have an action for the price, which is the consequence of the rescission of the sale. It is useless to inquire whether the offer to return the slave must necessarily be averred in the petition, or whether this defect is cured by evidence of the offer. It is, therefore, ordered, adjudged and decreed that the judgement of the District Court be affirmed, with costs,