delivered the opinion of the court.
The defendants in error brought this action in the Circuit Court of Hinds county, to recover the sum of $600, and interest thereon, being, the price which it is alleged the plaintiff in error agreed to pay for a certain slave, sold to him by the defendants in error.
The defence set up was, that the contract was not complete, and that the slave died before. the contract was completed. The material facts, as disclosed by the evidence of the plaintiffs below, are these: Hilzheim proves that in 1852, he agreed to purchase from Stewart, one of the plaintiffs, the said slave, that the witness was authorized and directed by the defendant to make the purchase, at the sum of $600, to be paid by a draft on the house of P. & H. Hilzheim, falling due the 1st of January, 1853, “that this proposition was fully assented to by the plaintiff and the defendants;” that at the time of the purchase, the slave was sick at the residence of Stewart, about four miles from Jackson; that this fact was known to the defendant; the woman being in fact
.We have quoted so much of the testimony as relates to the completion of the contract, and the question is, whether it is sufficient for that purpose, to wit: to show in the language of the books, “that the bargain was struck.”
It has not been thought necessary to notice the testimony of the defendant; for admitting that it is what counsel say it is — direct and clear that the contract was not completed — it still would produce but a conflict in the evidence, and thus leaving the question to the jury, whose verdict would be, except in a very clear case, conclusive on this point. But to return to the plaintiff’s testimony. It is certain that the contract, so far as the vendors were concerned, was considered as complete; the proposition to sell was accepted by the defendant; the price, and manner of payment, were both agreed upon, and the slave subject to the purchaser’s control. Upon being told that the slave was too unwell to be removed, he replied, that he would send his little wagon for. her as soon as she was well enough to be removed. It is manifest that the indisposition of the slave was the only reason why she was not immediately delivered. She was delivered in point of fact, so far as a delivery could then be made. Stewart said to Garland, that
We are, therefore, of opinion, that the verdict of the jury— finding that the contract was so far completed as to work a change of property — must be sustained. If Garland, from what was done, acquired the right of property to the slave, the loss must fall upon him. He could acquire the right of property without acquiring the right of possession. The latter he could only claim upon complying with his part of the agreement. 2 Kent, 492.
But it is said that he acted as agent of Ware, in making the purchase, and is therefore not liable. The answer to this position is, that he undertook to give his own draft, and never proposed, in any manner, to bind Ware for the purchase-money.
Judgment affirmed.