HARRIS vs. ROWLANDS' ADM'RS, 23 Ala. 644

GIBBONS, J. The sole question presented by the bill of exceptions is, whether or not the charge of the court below to the jury was correct. The case presented by the bill of exceptions, is that of a vendee suing his vendor for breach of warranty of title on a sale of negro property made by the latter to the former, with express warranty of title.

The proof shows that a recovery had been had against the plaintiffs’ intestate, by ono Shelton, on a warranty of title to the same property to him, and also that ono Rutledge had recovered the property from the said Shelton on an adverse title; that the said judgments had been satisfied, and that the defendant was notified of the pendency of both suits. On the case thus stated, the law is in our opinion with the plaintiffs.

It is insisted, however, that the notice to the plaintiff in error was not sufficient in order to render the records of the recoveries had against Shelton and the plaintiffs’ intestate evidence in this cause; and that a mere verbal notice is not sufficient in any case. The answer to this objection is two-fold : first, the records wore offered in evidence, and received in the court below without objection ; and, second, it does not appear whether the notice to the plaintiff in error was by parol or in writing.

On the principle that a hill of exceptions is to be taken most strongly against tho party excepting, we w’ould intend, if it were necessary, in tho present state of tho bill of exceptions, that the notice was in writing. Tho only mode in which that presumption could he rebutted would be, by stating specifically in the bill of exceptions tho kind of notice that was proved to have been given to the plaintiff in error. As to the question whether or not in such a case a parol notice would be sufficient, we decide nothing in the present case, as in our opinion that question is not legitimately presented.

Nor does tho proof offered by tho defendant, as shown in the bill of exceptions, alter the legal aspect of the case made by the plaintiffs in the court below. A mero offer to rescind a contract by one party, not accepted by the other, has no legal effect whatever upon tho contract, unless tho party making such offer bases the samo upon the fraud or bad faith of the other party. In such cases, tho law considers an oiler to rescind as equivalent to a rescission.

But when the offer is not based upon the fraud of the other party, or upon some breach of contract or duty on his part, the mere offer to rescind refused by the other party has no effect whatever upon the contract.—Walker v. Clay & Clay, 21 Ala. 797. This would apply as well to tho offer made before the slaves were delivered, as to that made after such delivery; but the offer made before such delivery, if there was any virtue in it, would bo waived by the subsequent delivery of the property and execution of the written contract.

Nor does the fact that the plaintiffs’ intestate, Rowland, on being advised that Rutledge set up title to the property, examined that title, and expressed himself satisfied with his own title, make any difference as to bis right of action against the defendant below. This right of action arose upon the warranty of the defendant, and nothing but a distinct waiver on the part of Rowland could deprive him of it on a breach of that warranty so made by the defendant. This the testimony does not pretend to prove. We find no error in the record, and the judgment is affirmed.