Bowman v. Ware

Martin, J. delivered tile opinion of the court. Tho defendant is appellant from a judgment in a redhibitory action, setting aside the sale of a female slave and her two children. The defence in this court, relates to the want of a tender of the slaves. Tho petitioner alleges that she tendered said slaves back to tho defendant on condition of refunding the price, and is trow ready to deliver them back on the terms aforesaid. This is certainly a sufficient allegation. A witness has sworn ■that at the request of the plaintiff he called on the defendant and stated to him the defects in the slave, of which she complained ; and further slaved to him that she would not keep the slaves, but insisted on returning them and rescinding the contract. The defendant said he could not do this, as he was acting for a person in Mississippi; but that ho would give other-slaves in exchange at certain prices, which the plaintiff declined. At tho trial the plaintiff’s counsel entered on the minutes of the court and prayed that it be made a matter of record, that “ he then tendered a re-conveyance of the slaves in question, together with an offer to pay all costs up to that time.” This was refused by tho defendant’s counsel, as it should have been made before the institution of the suit. We are of opinion that the testimony fully establishes the allegations of the petition, so far as it became necessary to support a redhibitory action. In the case of Janin vs. Franklin, 4 La. Reports, 198, the judge who was then the organ of this court, said, that “until the vendee offers to return the slave, he cannot have an action for the price.” When the vendor rejects the offer, there is no necessity of bringing the slave, and making an actual tender to him. This would be always useless, and very often extremely inconvenient. The vendor and vendee of the slave may bo at a great distance from [600] each other. The former cannot say that no opportunity has been afforded to him to accept what he had declared his unwillingness or inability to receive. In the present case the vendor declared that he was acting for a person who resided in another State ; that he had other slaves which he would give in exchange at a certain price ; but that he should not rescind the contract. On this, it appears to us, the plaintiff might well institute her action. Where a hill of exceptions tulcdi to the charge of the jmy,6 does not vroposition^on which the charge was predicated and ob-courf will *83-iudge did lus duty. When the case came on for trial, the plaintiff’s counsel ex abundanti cautela, made what is called a tender to the adverse counsel, which he refused. It does not appear necessary to exPress anY opinion on this matter. Oaf attention has been called to a bill of exceptions taken * ' by the defendant’s counsel to' the refusal of the District Judge to instruct the jury, or give certain charges in relation to the question before them. As the bill of exceptions does not state any specific proposition, on which the instructions or charges ^ x x L ° required, were predicated, we are unable to test the correctness of the decision of the judge aguo in refusing them. We must therefore assume that he did his duty. On the merits, the case was tried by a jury; and their verdict is clearly supported by the evidence before them and ought not to be disturbed. It is therefore ordered, adjudged and decreed that the judgment of the District Court be affirmed with costs-