Dixon v. Chadwick

Spofford, J., dissenting. I think the plaintiffs should suffer a non-áuit. On the merits, the evidence is vague and obscure. But the want of a tender, under the circumstances of this case, seems to me to be a fatal obstacle in the plaintiffs’ way. They alleged, in their petition, that they had demanded a rescission of the agreement to sell, tendered back the slaves, and asked for a returp of the price, which the defendant had refused. 1 In his answer, the defendant averred that the plaintiffs kept the slaves until the day of their death, without ever offering to return them, or expressing the slightest dissatisfaction on account of their health. '• The only evidence on the subject, thus distinctly put at issue by both parties, is that of a witness, who testifies that he heard the defendant offer “to back out of the trade, but Mr. Dixon (one of the plaintiffs) said he¡ did not think he could do it.” This conversation is said to have been held on the 20th of January, 1854, which was a month after the trade is alleged by plaintiffs to have been made, and the slaves delivered, and some days at least áfter the plaintiffs had been apprised by their physician of the maladies complained of. There is nothing in the record from which I can infer that it was impossible or even inconsistent for the plaintiffs to offer to return the slaves, after discovering the redhibitory vices. The well established rule, requiring a tender in such cases, results from the general doctrine of commutative contracts, and affords a salutary check against fraud, concealment, and the after thoughts of self-interest. The vendor, warned in time, may take back his property, and by attention, save it. The vendee, who, having discovered a redhibitory defect, neglects to ndtifythe vendor by an offer to restore the thing, seems to take the risk of its perishing from that cause, upon himself.