Evans v. Cox

37 S.C.L. 106

• Court: Court of Appeals of South Carolina
• Decided: August 15, 1846
• Status: Published

Opinion

Curia, per

Wardlaw, J.

This court, according to the view taken of the evidence on the circuit, understands that the plaintiff delivered his mule to the defendant under a contract that he would accept in payment the demand of the defendant against Freeman; and that an offer was made to him of either the mule or the demand, both of which he refused.

The plaintiff has no right to change the contract and say he must be paid in money. If the defendant refuse to assign the demand, the plaintiff may have damages for that refusal. If the defendant have imposed upon the plaintiff by misrepresenting the nature of the demand, then the plaintiff may have damages for the deceit. If there have been no transfer of the mule to the defendant, or if the contract has been rescinded by defendant’s nonperformance on his part, or otherwise, the plaintiff may sue in trover. But against this action for the price of the mule, the defendant well objects that he shall not be entrapped into paying with money for that which he refused to buy with money, and for which the plaintiff agreed to take what he has offered.

The motion is dismissed.

EichardsoN, EvaNS and Frost, JJ. concurred. Butler, J. absent.