This was a suit by Morgan against Darragh, brought in tlie District Court of G-alveston county in 1857, to recover a negro woman. Morgan claimed to *174have purchased the woman at the auction sale of one "E. L. Ufford.
The woman appears to have been sold as the property ■ of John L. .Darragh, who brought her to the auction store of Ufford and gave him directions to sell her.
For some reason she was not sold on the day she was brought to the-auction room, but on the morning of the following day she presented herself to the auctioneer in neat, clean clothing, telling him she had come to be sold.
In pursuance of Darragh’s directions of the previous day the auctioneer put her up and sold her. She was ■struck off to Morgan at his bid of $210..
He received her from the auctioneer and took her home and returned to the auction room, where he tendered the money he had bid for the slave to the auctioneer, who refused to accept it; Darragh in the meantime having ■come to the auction room, protested against the sale, i and it would seem that angry words, followed by blows, touching the matter, passed between Morgan and Darragh.
Darragh claims that it was not his intention to have the woman sold, but merely to frighten her into good behavior. It does not appear, however, that he advised Ufford of any such intention, or at any time recalled or - qualified his directions to sell the woman, nor does it appear from the evidence that there was any collusion or "fraud between the auctioneer and Morgan. Darragh filed . a cross-petition praying for" a ’writ of sequestration and for damages, and for value of the slave’s services. The vwrit of sequestration was issued and executed, and on the same day Morgan replevied the slave.
There have been two mistrials in the case ; on the third trial Morgan recovered the slave, but the court, on the -defendant’s motion, granted a new trial.
-On motion of the defendant, the venue was changed to *175Harris county, and at the Spring term, 1860, the cause again came on for trial.
The jury returned their verdict for the defendant, giving him $850 as the value of the slave, and $450 for her •services.
The court was asked to give the following charges:
“1. If they believed from the evidence, that Darragh requested Ufford, the auctioneer, to sell the negro slave Lette at public auction the next day, and that Ufford, acting upon the request and representations of Darragh, put up the said slave for sale at public auction, on the day so designated, and the plaintiff bid upon said slave, at such sale, without knowledge of any contrary intention or purpose of Darragh, even any secret intention or purpose of said Darragh, not to let the said slave be sold in fact, or not to have her put up for sale, cannot affect the validity of the sale, and the jury will not take into consideration such secret intention or purpose of said Darragh.
“2. If the jury believed from the evidence, that Darragh was apprised on the morning of the day of sale that said Lette had gone to Ufford’s auction room to be sold, or was about to go, and did not interfere to stop said sale or restrain said slave until after she had been struck off to Morgan, he had no right to call in question the validity of the sale to Morgan, so far as he was concerned, afterwards.
“3. That under the circumstances contemplated by the above requested instructions, Darragh would have no right to complain of inadequacy of price, or any other matter connected with the sale, which he might have prevented, to the prejudice of Morgan.
“4. That there exist necessarily no privity between the owner of property sold at public auction and the purchaser. The auctioneer having possession, coupled with *176an interest in such property, is entitled to sue for and recover the price in his own name from the purchaser.. That his adjudication, of striking off the property in due order of auction sales, consummates the sale; and if he deliver the property to the purchaser, even without payment, or tender of payment, to himself from the purchaser, there being no fraud or collusion between them, and the purchaser having no notice of any objection or cause of complaint urged by the owner, the owner cannot claim the property from the purchaser, the same being: absolutely his; and the owner must look to the auctioneer for redress, if he has sustained a loss.”
These charges contain the law of the case, and should have been given to the jury. The charge given is mainly a correct exposition of the law; but there are passages-in it calculated to mislead the jury, and no doubt did mislead. For instance, this passage ■ occurs in the charge, and is not explained, and is not the law of this; case:.
“But if you believe otherwise, from the evidence, that Darragh did not in fact intend to sell the slave at auction, and that his instructions or conversation with Ufford were not such, under the circumstances, as would fairly justify,, or reasonably cause, Ufford, as a prudent man, to understand that he did intend to have her sold, without reservation, and that the slave was not delivered or sent to Ufford by Darragh for sale, but that she went of her own accord, without orders, then you will find for the defendant.”
Now, the law would be this: If Darragh, on a day specified, took the slave to Ufford, and told him he wanted her sold on the following day, and the slave came,, telling Ufford that she came to be sold, and Ufford sold her, the purchaser would take her as his property, whether Darragh delivered her or sent her to be sold on *177the morning of the sale or not; for the sale would he made in accordance with his previous instructions.
More than one such passage as this occurs in the charge, and they were not called for by the evidence, nor are they sound law.
The judgment of the District Court must be reversed and the cause remanded.
Reversed and remanded.