Mobley v. . Fossett

Supreme Court of North Carolina

Mobley v. . Fossett

20 N.C. 93

DecidedJune 5, 1838

StatusPublished

This text of 20 N.C. 93 (Mobley v. . Fossett) is published on Counsel Stack Legal Research, covering Supreme Court of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Mobley v. . Fossett, 20 N.C. 93 (N.C. 1838).

Pincite

Opinion

After stating the case, proceeded as follows: The mode of contracting for this species of property, prescribed by the act of 1819 (1 Rev. Stat., ch. 50, sec. 8), that is, writing signed, etc., was compiled with by the parties. The defendant's positively refusing to take the slave Sam at all dispensed with the necessity of a tender of him at Hillsborough (2 Stark. on Ev., 778). Whether the plaintiff had a right to to bring trover or detinue, it seems to us, not necessary to determine; for if he had he might waive such right and bring assumpsit to recover damages for a refusal to deliver Squire according to the contract when demanded. Mr. Starkie in his treatise on evidence (2 vol., 886) says: "An action by the vendee of goods is either on a special contract for not delivering the goods (assumpsit), or of detinue; or of trover for a conversion; or of money had and received upon a rescinded contract; or upon a warranty." Here the plaintiff elected to bring assumpsit and to declare on the breach of the special contract to deliver the slave, Squire. We think the action sustainable. The nonsuit must be set aside and a new trial had.

PER CURIAM. Judgment reversed.

(95)

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After stating the case, proceeded as follows: The mode of contracting for this species of property, prescribed by the act of 1819 (1 Rev. Stat., ch. 50, sec. 8), that is, writing signed, etc., was compiled with by the parties. The defendant's positively refusing to take the slave Sam at all dispensed with the necessity of a tender of him at Hillsborough (2 Stark. on Ev., 778). Whether the plaintiff had a right to to bring trover or detinue, it seems to us, not necessary to determine; for if he had he might waive such right and bring assumpsit to recover damages for a refusal to deliver Squire according to the contract when demanded. Mr. Starkie in his treatise on evidence (2 vol., 886) says: "An action by the vendee of goods is either on a special contract for not delivering the goods (assumpsit), or of detinue; or of trover for a conversion; or of money had and received upon a rescinded contract; or upon a warranty." Here the plaintiff elected to bring assumpsit and to declare on the breach of the special contract to deliver the slave, Squire. We think the action sustainable. The nonsuit must be set aside and a new trial had.

PER CURIAM. Judgment reversed.

(95)

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Bluebook (online)

20 N.C. 93, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mobley-v-fossett-nc-1838.