delivered the opinion of this court.
In this case the court correctly rejected the plaintiff’s first prayer. The defendants’ right to rescind the contract, did not depend upon the fact that he returned, or offered to return the negro, within a reasonable time after the sale; but whether he did so, within a reasonable time, after he discovered the alleged fraud.
The court erred in rejecting the plaintiff’s evidence in the second exception. The defendants had offered evidence to prove, that tire negro man was sound before the sale, and without limitation of time, as to how long before the sale; and Carter’s testimony was admissible to rebut that evidence.
*160The first prayer in the third bill of exceptions, asked the court to reject the whole of the evidence, as inadmissible under the pleadings in the case, which the court refused.
This evidence had been given to the jury, and was admissible upon the issues, and conceding that unless it had been followed up by other and further testimony, its legal insufficiency to prove the issue, for which it was offered, (which we by no means intend to decide,) yet inasmuch as the plaintiff was not prejudiced thereby, the decision of the court does not furnish a ground for reversal.
The court erred in not granting the second prayer of the plaintiff, in the third bill of exceptions; this prayer presented the law of the case correctly.
Mr. Story in his Treatise on Sales, sec. 159, states the law thus; “Ordinarily, therefore, and in all cases of sale,- the party defrauding is bound by his agreement,- if the party defrauded choose to hold him to it.- The party defrauded has- the option of acquiescing in the agreement, or of avoiding it; but if he elect the latter alternative, he is bound to manifest his determination within a reasonable time after the discovery of the fraud. But if after he discovers the fraud, he remain silent, under circumstances in which silence would indicate acquiescence; or if he act or deal in relation to the subject matter in such a mode as to imply a willingness to stand by his bargain, he is considered as ratifying it, and he cannot afterwards avoid it. If he would avail himself of the fraud to avoid the contract, he must exercise his right of rescission immediately upon the discovery of the fraud; for if after knowledge thereof, he deals with the subject matter of the contract as his own, he cannot repudiate the contract, although he should afterwards discover further circumstances connected with the same fraud.”
The court were correct in rejecting the plaintiff’s third prayer in the third bill of exceptions. The hypothesis of this prayer was imperfect, and did not present the question of fraud which was in issue in the case, and although as an abstract question-of law it might be correct, yet as in this case it might have misled the jury, the court properly rejected it.
*161The court erred in refusing the fourth prayer in the third bill of exceptions, and granting the defendant’s prayer in the fourth bill of exceptions, for ihe reasons assigned for reversing their judgment, on the plaintiff’s second prayer, in the third bill of exceptions.
JUDGMENT REVERSED AND PROCEDENDO;