Mobley v. Fossett

• Decision Date: 30 June 1838
• Parties: OLLEN MOBLEY v. JOHN A. FOSSETT.
• Court: North Carolina Supreme Court

20 N.C. 93

OLLEN MOBLEY

v.JOHN A. FOSSETT.

SUPREME COURT OF NORTH CAROLINA

JUNE TERM, 1838

Agreement—Action.

1. Where an agreement in writing was made for the exchange of slaves, and one of the parties afterward refused to complete the contract: It was field, that the latter might maintain an action of assumpsit on the special agreement.

2. Where a party is bound by his agreement to make a tender of an article at a particular place, and the other party apprises him that he will not receive the article at all, it dispenses with the necessity of making the tender.

This was an action of assumpsit in which the plaintiff declared upon a special agreement for the exchange of slaves. On the trial at Sampson, on the last circuit, before his Honor, Judge Dick, the proof was as follows: The defendant being the owner of a slave by the name of Squire, wrote a letter to; the plaintiff proposing to exchange Squire with him for either one of two slaves belonging to the plaintiff, by thenames of Sam and Balaanc, if the plaintiff would carry one of said slaves to the defendant at Hillsborough. The plaintiff immediately agreed to the proposition and sent an agent with the slave Sam, and also a bill of sale for him to the defendant, and a letter informing the defendant that he (the plaintiff) accepted the offer made. The agent on his way met with the defendant in Raleigh and handed

him the plaintiff's letter, and at the same time tendered to him the slave Sam, with the bill of sale, and offered to deliver Sam either at Raleigh or Hillsborough and receive in exchange the slave Squire, according to the agreement. The defendant then refused to take Sam and declared that he would not receive him at any place, nor would he deliver Squire. Upon this evidence the judge directed a nonsuit, on the ground that the plaintiff had misconceived his action—that he ought to have brought either trover or detinue; whereupon the plaintiff appealed.

DANIEL, J. 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...