NEVETT v. BERRY, 18 F. Cas. 27

THE COURT, however (THRUSTON, Circuit Judge, contra), permitted the evidence to be given. Mr. Brent then objected that the contract was executory, and did not pass the title; and that the negroes had never been delivered to the plaintiff, and that it appears by the contract that they were not to.be delivered until November; so that neither the title nor the right of possession was ever in the plaintiff. Jackson v. Clark, 3 Johns. 424. Mr. Coxe, contra. The defendant, by the bill of sale, under his seal, has solemnly acknowledged that he had “bargained, sold and delivered,” the negroes, and he cannot now deny it.

The money was to be paid on the-first of November, but the sale and delivery were complete on the 24th . of June. THE COURT (nem. con.) was o* opinion that the defendant could not deny the delivery, having solemnly acknowledged it by his deed; that the payment was a matter of mutual, but not dependent, covenant; that the sale was complete, and the property and possession vested in the plaintiff. Mr.

Brent, for the defendant, prayed the court to instruct the jury that, if they believe from the evidence, that the defendant contracted to sell and did sell to the plaintiff sundry negroes, and afterwards refused to comply with his said contract, and that while the negroes were yet in the possession of the defendant, he applied to the plaintiff to withdraw from the said sale several of the said negroes, at the prices to be paid for the same by the terms or the original contract, that the plaintiff did agree to the said proposition, and that the defendant did deliver to the plaintiff, and the plaintiff did accept the residue of the said negroes, and pay for the same according to the terms of the said original contract, that the said original contract has been performed so far as the plaintiff has not agreed to rescind the same, and the plaintiff is not entitled to recover in this action.

But THE COURT (nem. con.) refused to give the instruction. Mr. Coxe, for piaintiff, then prayed the court to instruct the jury, that the contract executed by the defendant under date of the 24th of June, 18S5, given in evidence by the plaintiff, in law amounted to an actual sale of the negroes therein mentioned, and they became the property of the plaintiff.

And if the jury should believe, from the aforesaid evidence, that the plaintiff did on or about the 5th of November, 1S35. demand the delivery of the said negroes, which the defendant refused to deliver, but retained possession of the same against the will and assent of the plaintiff, such refusal to comply with such demand is sufficient evidence from which the jury may and ought to find the defendant guilty of the conversion charged in the declaration; and the evidence of the subsequent delivery, by the defendant, of the said negroes, or some of them, can only operate to mitigate the damages which the plaintiff is entitled to recover; and that if the jury shall believe from the said evidence that the plaintiff did not accept the said delivery as a compliance with the said original contract, and intend thereby to relinquish his claim for damages sustained by such illegal detention by the defendant, the acceptance, if proved, does not amount to a release of said damages.

Which instruction THE COURT gave (nem. con.). Mr. Brent then prayed the court to instruct the jury that the plaintiff could not in law recover in damages more than the value of the negroes at the time of the conversion. But THE COURT (nem. con.) refused. Verdict for the plaintiff, $750.