It appears from the evidence in this case, that the cotton was not paid for as originally contemplated at the time of the sale, and that Phillips extended indulgence to the defendants below, and the Confederate notes were not in fact paid till after the surrender of the Confederate armies. The evidence is in conflict as to Phillips’s knowledge of that fact, when he received the notes. He swears positively that he had no such knowledge, while Blalock swears that he informed him of General Lee’s surrender at the time.
It was for the jury to reconcile this conflict if possible, and if not, to consider the credibility of the witnesses, their means of knowing the facts about which they testified, etc., and determine who was most entitled to credit.
Í. If Phillips received the Confederate notes in payment for the cotton, with knowledge of all the facts, and the trade was fairly consummated, it is not the business of the Court and jury to undo what has been done. But if Blalock, who had not complied with the original terms of the contract, and had received indulgence, after he learned that the Confederate armies had surrendered, and that Confederate treasui-y notes were worthless, went to the residence of Phillips, in the country, and concealed the facts from him, and by false statements, or other fraudulent means, induced Phillips to receive the money in payment, he was guilty of fraud, and cannot insist upon the receipt of the Confederate notes by Phillips as payment.
2. But it is insisted that Phillips, having received 'the *221Confederate notes, was bound to tender them back to Blalock before he could maintain an action for the price of the cotton. If the notes were Avorthless when received by Phillips, or so nearly so, that they became worthless before he obtained knowledge of the surrender, and had an opportunity to tender them back, the tender was not necessary. ¥e understand the rule to be, that a contract cannot be rescinded, without a return of the chattel, or currency, received, unless it is valueless to both parties. But if it is valueless, it need not be returned. 3 McL. C. C., 386. Hemp., 710. Cr. C. C., 427.
3. It rvas contended further, that plaintiff should have brought his action of trespass vi et armis for damages, as the-cotton was forcibly taken from his gin house at night, by the defendants and others. Possibly, he could have maintained such action. But he had a right to waive the -tort, and sue upon a contract, express or implied. Having done so, he can recoAer no damages for the tort, but is confined to his action ex contractu, and cannot recover damages beyond the value.;; of the cotton, with interest. Bevised Code, 2894.
4. The only remaining point requiring attention is the one relating to the conduct of certain jurors, which, we think, was highly reprehensible, and on that account a new trial should have been granted. It appears from the evidence that two of the jurors, while charged with the consideration of this ease, not only conversed with persons, not jurors, about the case, but discussed its merits, and commented upon the evidence in presence of a number of persons at the table, and misstated it, by saying that the defendant, sworn as a witness, had contradicted himself, etc. A juror, Avhile the case is on trial, should neither speak to any otie, nor permit any one to speak to him about it. For the gross violation of this rule in this case, the Court should not only have set aside the verdict, but he should have inflicted exemplary punisment upon the delinquent jurors.
. Judgement reversed.