This is a redhibitory action for a disease in a slave, sold by defendant to plaintiff. The appellant asks for the reversal of a judgment, on the ground, among others, that no tender of the slave is either alleged or proved.
It is the well settled doctrine, that allegation and proof of a tender are indis-pensible to recovery in an action of this kind ; and that the tender should be made, if practicable, before the institution of the suit. 2 N. S. 466 ; 4 La. 193 ; 19 La. 283; 9 Rob. 306 ; 1 An. 389 ; 2 An. 955 ; 4 An. 562 ; 10 An. 127 ; 11 An. 209.
Two exceptions to this general rule, are recognized by the decisions :
First — When an actual tender is not possible; and
Second — Where defendant has done some act, or made some declaration, which demonstrates that a formal offer to return the thing sold, would have been fruitless. 1 An. 44 ; 4 An. 344.
It is contended by appellee, that this case comes within the first of these exceptions — -that defendant was an absentee from the State when this suit was instituted.
The evidence shows that the sale took place- on the 25th of March, 1858, defendant being then a residfent of Amite city, and plaintiff residing within six miles of Amite city, which was his post-office ; that the disease of the slave was discovered by plaintiff within three or four days after the sale ; that a physician was immediately called in, who pronounced the disease to be of several months standing ; that defendant continued to reside in Amite until the latter end of May, or beginning of June, being two months or more after the sale ; that on his departure, defendant left an agent in the parish, who, it is reasonable to believe, was known to plaintiff, since the fact was notorious in Amite city, and that agent was made garnishee in this action,
It is, therefore, perfectly evident that there was no impossibility or even inconvenience, in making the amicable demand to rescind the sale, accompanied with an offer to return the slave. This suit was brought in September, 1858, and no tender appears to have been made, either before or since suit brought. We note this latter fact, although Judge Martin held, in Barrett v. Bullard, 19 La. 283, that the offer to return must always precede the institution of a suit. The same doctrine was held in Fisk v. Proctor, 4 An. 562.
We are of opinion that this suit must fail, for want of allegation and proof of a tender of the slave.
*402The vondee lias one year to institute the action of redhibition, and, as a consequence, may at any time previous to the institution, make a tender to the vendor. But if he brings his action at once, and does not wait until i.he twelfth month is about expiring, he cannot, on the trial of the case, give as a reason for not alleging and proving a tender, that he has the whole year for that purpose. The tender, if it can be made, must precede, if not the institution of the suit, at all events the trial.
The question upon which this case turns is this : Was it practicable for the plaintiff at any time, since the discovery of the redhibitory vice, and before the trial, to make a tender ? The test is not the practicability of the offer of tender at the time of instituting the suit, but at any time since the discovery of the' redhibitory vice or defect. It may be very easy for a vendee to do so during nearly the whole period of time previous to the institution of his action, and the matter become impracticable at the time, but it could hardly be said that in such a case, the exception of impracticability would prevail. The law dispenses with a tender, in such contingencies, because it requires nothing to be done in vain ; and, applying this principle to the case at bar, it will appear, that since the discovery made by the plaintiff of the redhibitory defect of the slave purchased by him of the defendant, over two months elapsed, during which it was practicable and easy to make a tender. Having failed to do so, his suit should be dismissed.
This conclusion is not at variance with our decision in the case of Dixon v. Chadwick, reported in II An. 215. That case was decided upon its peculiar circumstances, which brought it within one, if not both, of the exceptions to the general rule, mentioned above. Judge Lea, the organ of the majority of the court says: “ Under the circumstances, as disclosed by the evidence, we think a tender of the slaves by plaintiffs, was unnecessary, if not impracticable.”
The circumstances, alluded to by the Judge, are not detailed in the opinion, but appear from the record, which is before us, to be as follows :
Plaintiff bought of defendant, two women slaves, and paid for them, without any writing passed at the time. It was, however, understood and agreed, that an act of sale should be made, expressing a full warranty of the soundness of the slaves, except an obstruction of the monthly discharge in one of them. Defendant, subsequently, caused an act of sale to be drawn up by a notary, declaring that there was no warranty of the health of the slaves sold, it being understood between the parties that they were constitutionally unsound.
He tendered this deed to the plaintiffs, who refused to accept it, as being contrary to their verbal conventions; the parol proof of which was received, without objection on the trial. Defendant, upon this refusal, threw the deed on the floor at plaintiff’s feet, and left the house.
It was considered by the majority of the court, that the act of defendant, in tendering a false bill of sale to plaintiffs, and in insisting upon their receiving it indicated a determination, on his part, not to rescind the sale; which rendered a formal tender unnecessary, because it would have been fruitless. We also considered, that the feeble and bedridden condition of the slaves, at the time of this conduct of defendant, (they being both sick of pulmonary consumption, of which they shortly afterwards died,) rendered their removal from plaintiff’s house impracticable, without inhumanity. Hence the language of Judge Lea, in the opinion, as quoted above.
Judge Spofford dissented from that decision, as the report of the ease shows because a tender was alleged in the petition, and denied in the answer ; and be-*403canse the learned Judge thought that the facts of the case disclosed no impracticability nor inconvenience in the return of the slaves. There is surely nothing in either of the opinions delivered in Dixon v. Chadwick, that militates against the well established doctrine of tender, as a prerequisite to recovery in the redhi-bitory action. We entertain no doubt of the correctness of the decision in that case. It was, in fact, a case within the recognized exceptions to the general rule.
To use the language of Judge Martin, upon this very subject, in Barrett v. Bullard, exceptio probat regulara.
It is, therefore, adjudged and decreed, that the judgment of the District Court be reversed; and that there be judgment for defendant, as in case of non-suit, with costs of both courts.