delivered the Opinion of the Court.
Allen sold Carson a negro woman and child for four hundred and twenty five dollars, to be paid by the acceptance of a bill, to be drawn in favor of Allen, on the firm of Carson, Wells and Griffin,at Natchez or NewOrleans,at four months; and was to execute a bill of sale for the slaves,
After the plaintiff had introduced testimony proving the sale of the negro woman, for four hundred and twenty five dollars, without mentioning the child, and announced that he would i’est his case upon the testimony then heard, the counsel for the defendant moved the Court to instruct the jury as in case of a non-suit. The Court overruled the motion ; and this is the first error assigned.
I't is evident, from the further progress of the - testi- ' mony, that a negro woman and'dvild were sold, as described in the declaration. But that the witnesses, inadvertently, had spoken of the sale of the woman only, which had not been observed by the counsel for the plaintiff. If, therefore, it were admitted that the variance was material, we would not feel disposed to reverse the judgment on that ground. 'Justice should not be entangled by technical niceties, or a meritorious case lost by the casual omission of counsel or the inadvertence of witnesses. As it would have been allowable ' and proper in the exercise of a sound discretion after' the motion was made, for the Circuit Court to have permitted the counsel to rectify the accidental omission and supply the proof, so we feel it our duty, after the motion has been overruled, and the fact necessary to be proved, has been supplied, to refuse a reversal on that ground. ,
Second. It is assigned for error that the Court erred in refusing to grant a new trial, because the verdict was against the evidence.
There seems to be a contrariety of evidence in relation to the soundness of the slaves, and it was the province of the jury to weigh it, and we should not disturb their verdict on this ground.
But it is clearly established that the plaintiff was to execute a bill of sale for the slaves, warranting their soundness, and there is no diversity or contradiction in the testimony upon this point; and no attempt is made to prove that the bill of sale was ever executed, or tendered, or its tender waived by the defendant, before this action was brought.
It is equally clear that the price was to be paid by the acceptance of a bill at four months, by Carson and his co-partners.
Now, the question arises, upon this state of proof, whether a recovery can be sustained upon either of the two general counts in the declaration.
It cannot be sustained on the quantum valebant count, because a certain price was agreed on. 1 Chitty, 338.
Nor will the indebitatus assumpsit lie upon a special contract, unless (1) the payment was to be made in money; (2) the plaintiff has performed or executed the contract on his part; (3) and the time of payment has arrived. 1 Chitty, 339, 340; Starkie's Evidence, part iv, 93, 96; Buller’s N. P. 139.
But, though the payment was to be made by the acceptance of a bill of exchange, payable at a future day, if the time has expired, as money is then due and payable, the action will lie. Starkie’s Evidence, part iv, 95-6; 1 Chitty, 332, 339.
But it is difficult, from the proof, to determine whether the title to the slaves passed, or was intended to pass, by parol agreement, or was to await and pass only by the execution of the writings spoken of, to wit, the bill of sale on the one side, and the acceptance of the bill on the other. The witnesses speak of a sale and
But it may be that the sale was complete, and the title was intended to pass by the parol agreement, and the bill of sale was to be executed as an additional assurance and evidence of title, as well as of warranty of soundness. If so, as a part of the consideration of the defendant’s promise has been performed, and he may have received a partial benefit, the plaintiff would be without remedy, unless he could maintain an action in some form. 3 Dana, 356-7-8, and the authorities there referred to; 1 Saunders, 320, a, note 4. And the principle laid down in these authorities, although made to apply to covenants, applies with equal reason and force to parol contracts.
But as the jury has passed upon the case, if their verdict can be sustained in eitheir aspect of the proof,, it should not be disturbed, as it is certainly of doubtful interpretation.
But though, in the latter aspect of the case, if a specjai action of assumpsit would lie, averring a partial ....... . ° performance, we think indebitatus assumpsit will not.— The contract has not been executed or performed by the plaintiff, in full. And, according to the authorities be-f°re referred to, and to which there seems to be no exception, this must be shown. We are cognizant of no adjudged case where the -general count has been supported upon proof of a partial performance by the piaintin.
And in the action of covenant, a performance in part must be-averred in the declaration, or otherwise it must
If this averment be necessary in covenant, it would seem to be equally proper in'an action on a special parol agreement, when a part only of the agreement, on the part of the plaintiff, has been performed.
It is, therefore, the opinion of the Court, that the judgment of the Circuit Court be reversed, and the cause remanded, that a new trial may be granted, and that the plaintiff have leave to amend his declaration, if he aslc it, and further proceedings be had, not inconsistent with this opinion.