M'COY VS MOSS and NEWBERRY, 5 Port. 88

GOLDTHWAXTE, J. The payment of the note' on which the action is founded, was resisted on the ground "of a failure of consideration, which is disclosed by the bill of exceptions to have been two slaves, sold by M’Coy to Newberry. For these slaves, a bill of sale was executed, using words passing a present interest, and containing a warranty, that the slaves sold, were sound and free from the claims of all persons whatever, hut, nothing is mentioned of delivery. The defendants proved by parol evidence, that the plaintiff was, by the contract, to deliver a certain negro fellow to them, and that no delivery was made.

The admission of this evidence, was objected to by the plaintiff, because, (as he insisted,) it varied the written contract between the parties, and parol evidence was incompetent for this purpose, unless it was first shewn that an agreement was made subsequent to the execution of the written contract. The parol evidence was however admitted by the Court below, a bill of exceptions was signed, and sealed; and the judgment rendered against the plaintiff on verdict, is now sought to be reversed, because of this alleged error.

If the evidence is understood to apply to any other, than one of the slaves named in the bill of sale, there would be no doubt as to its being error to admit such evidence; but, w.e think a fair

interpretation of the bill of exceptions, allows the presumption, that one of the two slaves sold, was referred to and spoken of. This being the construction which we place on the bill of exceptions, the necessity is imposed,'of considering whether the evidence admitted, was such as varied, contradicted or explained the written contract — as the rule is well understood, that parol evidence is inadmissible for any of these purposes.

The bill of sale, introduced in evidence before the jury, mentions nothing of a delivery to be made of the property sold; and unless it be an incident to alisales, it must follow, that all stipulations in reference to the mode, time and place of delivery, must be reduced to writing, if the contract itself is so evidenced, and if omitted, then parol evidence to supply the defect, would be irregular and inadmissible. Judge Story, in his work on the conflict of laws, says: “The common law deems a sale, as between the parties, complete without delivery”—page 318.

The same eminent, jurist, in the case of Meeker vs Wilson, declares, “that by the common law, a grant or assignment of goods and chattels, is valid between the parties, without actual delivery, and the property passes immediately upon the execution of the deed;” this is also recognised as a general rule, perfectly well established in the case of Sampson vs Sumner. In 2 Black.

Com. it is thus laid down; “As soon as the bargain iS'struck, the property of the goods is transferred to the vendee, and that of the price to the vendor; but the vendee cannot take the goods, until he tenders the price agreed on; but if he tenders the money to the vendor, and he refuses it, the vendee may seize the goods, or have an action against the vendor for detaining them.

And by a regular sale, without delivery, the property is so absolutely vested in the vendee, that if A sells a horse to B for ten pounds, and B pays him earnest, or signs a note in writing of the bargain, and afterwards, before the delivery of the horse, or money paid, the horse dies in the vendors custody, still he is entitled to the money, because, by the contract, the property was in the vendee.” These authorities shew that a sale is complete without delivery; and in the present case, it being evidenced by a written contract, passing apresent interest in the slaves, sold and granted, parol evidence was inadmissible to extend or enlarge the contract, or indeed in any manner to change or modify the same.

If such proof could be admitted, a contract in .'writing might be essentiálly varied, as without words shewing a different intention between the parties, the thing sold, if presently conveyed, would without any delivery, be at the risk of the vendee; and if the parties intended to contract for the future delivery, so as to leave the thing contracted for, at the risk of the vendor, this stipulation should enter into and form a part of the contract. If a contrary rule was adopted, a written contract ■would be subject to many and various modifications.

It might be insisted that the delivery was to be made at some other time or place, or under peculiar circumstances, which would materially vary, alter and explain a written contract. It must not however be understood, that the omission of an undertaking to deliver the thing sold, by the vendor, would authorise him to withhold it from the vendee; for in such case, the latter might, after demand and refusal by the vendor, elect either to bring his action to recover the thing, or to consider the contract of sale as rescinded, and sue for the price paid.

So, if a thing which had no existence, was sold, the contract of sale would be void, and the vendee immediately entitled to his action; and if the vendor had no title, the vendee might sue at once for the price paid, considering the contract as at an end, or might maintain his action on the warranty of title, express or implied.

No case can well be supposed, in which the law does not fully protect the vendee from the fraud of the vendor, and if a delivery was prevented by him, after a sale, while the thing was in existence, and under his control, he would be responsible to the vendee; but if the thing perished or deteriorated in value, without the fault of the vendor, it would be the loss of the vendee, unless it could fairly be inferred, from the contract, that it was to remain at the risk of the vendor, until a delivery was made, and the possession changed.

The judgment rendered by the Court below, must be reversed, and the .cause remanded for further proceedings. 1 Gall. R. 419. 17 Mass.1 R. 110.