delivered the opinion of the court.
• This case comes before us on a bill of exceptions. The plaintiff in his petition represents that a certain note drawn by one Phelps and endorsed to the plaintiff, by him was given in payment for a slave which was to be conveyed and was conveyed on a particular day to him by the agent of the defendant. The act of sale is referred to in the petition by its date, the name of the slave sold, the name of the vendors, and the price, and as annexed to the answer in another case in the same court. The object of the suit is to recover back the price on the ground of a redhibitory vice. On the trial the plaintiff offered in evidence the act of sale. It was objected to on the ground “that the bill of sale averring the sale to have been made for ready money, and the petition for a promissory note, there was a contradiction between the two, and the bill of sale could not be introduced.” To this objection the court assented, and the bill of exceptions was tendered. This bill of exceptions was taken on the first trial, but the court having granted a new trial, the same evidence was offered on the second trial, and the same objection made and sustained. A new bill of exceptions was signed, in which the judge adds the further ground, “that there must be some point to the latitude allowed in such cases.” And that on the for*276mer trial, the court intimated that the plaintiff ought to amend his petition in such manner as to correspond with ms evidence. There was a verdict and judgment against the plaintiff and he appealed.
In a redhibitory action when the plaintiff in his petition in order to prove the warranty of the slave, relies on a sale passed on a particular day and identified it by referring to it as annexed to on answer in a particular case in the same court, held that by the introduction in evidence of the act of sale, the defendant could not complain of surprise, althoug by the petition he alleges the payment to have been made by an endorsed note, and the act of sale shows it to have been made in In such a case the judgment rendered could be pleaded in bar to a subsequent action for the same cause.In the case of Ditto vs. Barton, this court held that when there could be no surprise and when res judicata, may be pleaded to another action on the same allegation, the defendant could have no ground to complain of a variance. 6 Martin N. S. 128.
In the case before the court the party could not reasonably complain of surprise. He was informed by the petition, that the plaintiff' to prove the warranty of the slave, relied on a sale passed on a particular day and identified it by referring to it as annexed to an answer in a particular case in the same court. He was, dictinctly notified that the plaintiff held him liable in warranty of the slave Fanny, according to the deed of the 13th of December, 1831.
If he could have no reason to complain of surprise, had he any to apprehend that the judgment to be rendered in this case, would not be a bar to any subsequent action for the same cause? The suit was instituted to annul the sale of the slave Fanny, sold on the 13th December, 1831, and warranted free from redhibitory vices, and to recover back the price paid. There appears to be no dispute in relation to the price. It seems that the vendor acknowledged in the deed, that the price had been paid in ready money, and the plaintiff alleges that it had been paid before the conveyance in an endorsed note. But the gist of the action was the sale, the warranty, and the redhibitory vice of the slave. If the judgment rendered below were to stand, we should not hesitate to say, that it would be a complete bar to a subsequent action for the same cause.
In the case of Laferriére vs. Sanglier, which was one oí redhibition, the deed expressed the price to be one thousand five hundred dollars in hand, paid in his note of hand; evidence was admitted to prove that two notes were given of seven hundred and fifty dollars each. This was held not to be such a variance as to exclude either the notes or the *277deed. In that case the redhibition was set up in defence of suits brought on the notes. 12 Martin, 399.
We consider the rule adopted in the case, first alluded to a safe and reasonable one, and sufficiently rigid to guard parties against surprise, and to protect them against being again sued for the same thing. In our opinion therefore, the deed ought to have gone to the jury.
It is therefore ordered, adjudged, and decreed, that the judgment of the District Court be annulled, avoided, and reversed, and that the case be remanded to the District Court with directions to admit the deed in evidence, notwithstanding the objection mentioned in the bill of exceptions, and that the appellee pay the costs of the appeal.