delivered the opinion of the court

This suit was instituted to recover back the sum of $460 which had been paid by the plaintiffs to the defendant, on a contract for the sale of a negro man, and comes up on a bill of exceptions to three several instructions given to the juiy by the court, before which the cause was tried.

It appears from the statement in the bill of exceptions, of the evidence offered by the plaintiffs at the trial, that in June, 1833, an agent of the plaintiffs, verbally agreed on their behalf to purchase from the defendant a negro man at the price of $460, and that the defendant agreed that he would deliver the negro man, upon the payment of that sum. That on the 5th of July, 1833, the negro man then being in the jail of the county, in the custody of the sheriff, at the instance of the defendant for safe keeping, the agent of the plaintiffs paid to the defendant $460 for the negro, and at the same time took from him a receipt under his hand and seal for that sum, expressed to be in full payment for the negro man, and containing an express warranty that he was sound in mind and body, and a slave for life ; with an order of the same date written on the back of it by the defendant to the sheriff, to deliver the negro man to the agent of the plaintiffs, which were both produced and read at the trial. That the residence of the defendant where the contract was made, being five miles from the jail in which the negro was confined, and the defendant at the time busily employed, the order to the sheriff to deliver the negro man was given on the offer of the agent of the plaintiffs to go to the jail, lhat he on the same day proceeded with the order to the jail, and residence of the sheriff, and required of him to deliver the negro man. That a short time after his arrival, and on *416going to the jail it was ascertained, that the negro man had cut his throat, and soon after died, and that after he was dead, and not before, the sheriff offered to deliver him to the agent, who declined to receive him. On this state of facts, the court below instructed the jury, 1st. That the parol agreement in June, 1833, between the agent of the plaintiffs and defendant, was not legal evidence in the cause, and that the contract of the 5th July, 1833, as evidenced by the receipt and order thereon, was the only contract on which the defendant was legally responsible; 2ndly, that from the evidence stated in the exception, the title to the .negro man passed to the plaintiffs, by the payment of the purchase money, and order of delivery, as evidence of the contract of sale (the receipt) of the 5th July, 1833, and the order thereon, if they should believe from the testimony in the cause, that at the time of that contract, the negro man was alive, and in being, and therefore that the plaintiffs were not entitled to recover in the action ; and 3rdly, that from the evidence in the cause the plaintiffs could not maintain an action of assumpsit against the defendant for money had and received.

As to the first of these instructions no sufficient objection to it, is perceived. There was no note or memorandum in writing of the bargain, or agreement in June, 1833, that was rejected by the court, nor any thing to give it validity as a contract for the sale of the negro, but it was a mere naked verbal agreement, on the part of a known agent of the plaintiffs, and in their behalf, to purchase of the defendant, a negro man at the price of $460, and on the part of the defendant to deliver the negro on the payment of that sum; with no delivery or acceptance actual, or constructive, nor any thing given in earnest to bind the bargain, or in payment in whole, or in part, and void under the statute of frauds, and therefore not properly admissible in evidence either as the foundation of the action, or to vary, or extend the written contract of sale of the 5th of July, 1833, evidenced by the receipt, ancl order on the back of it of that date. The verbal agreement of June, 1833, contemplated the payment *417of the purchase money, and the delivery of the man, at one and the same time. Whereas, by the transaction in writing of the 5th of July, 1833, when the purchase money was paid, the place where it Was entered into, being five miles from where the man was confined, an immediate actual delivery was dispensed with, and an order for delivery directed to the sheriff,- who had him in custody, was agreed upon and accepted; which parol evidence of an. agreement to make immediate, actual delivery would be inconsistent with, and have the effect to ovary; and the court did right in rejecting such parol evidence, and confining the parties to the effect and operation of the receipt, and order of the 5th of July, 1833. The parol agreement of June, 1833, not coming within the principle on which a subsequent parol agreement not contradicting the terms of the original written contract, but extending only the time of performance may : be admitted. *

The second instruction however is obnoxious to exception, . though not on the ground taken in argument, of a failure of ' consideration for the payment of the purchase money, for the want of actual delivery and acceptance by the plaintiffs, or. their agent. The mere. giving of the order for delivery and f the acceptance of it by the agent of the plaintiffs, were not I indeed an actual delivery and acceptance of the man himself, } within the meaning of the 17th section of the statute of frauds, I as the sheriff who held him for the defendant might have) refused to deliver him, in which event there could' not have I been an actual acceptance of him by the plaintiffs, or their \ agent. Nor if standing alone, without any acceptance of, or | assent to the order by the sheriff, with nothing given as 1 earnest, or in part payment, nor any note, or memorandum in I writing of the bargain, would it have been a sufficient con- | structive delivery, to gratify that branch of the statute which / requires that “the buyer shall accept part of the goods sold, i and actually receive the same.” But distinguishable from the * numerous cases in the books, in which virtual or constructive deliveries have been held to be sufficient, As where a pur*418session for a special purpose of him the vendee, and the ven* dor accepts the order, or agrees to do so, or where the goods are ponderous and incapable of being handed over from one to another, and the buyer so far0 accepts them, as to treat them as his own, by exercising acts of ownership over them, from which possession as owner may be inferred — or where the delivery is symbolical, such as the delivery of the key of the warehouse, in which the goods are lodged; or where actual delivery is impracticable, and can only be made by such symbolical means as the circumstances will allow, as in the case of a ship or cargo at sea. Here the subject of the sale was an entire thing in being at the time, and capable of actual delivery; the circumstance of his being some miles from the place where the contract was made not being material, there was no exercise of right, no dealing with him by the plaintiffs as their own; and the mere naked acceptance of the order for delivery by the agent of the plaintiffs, could not amount, in the spirit of either of the classes of cases alluded to, to a delivery and acceptance of the negro man himself, actual, or constructive, within the meaning of the •statute. The person to whom the order was directed, and in whose custody the man was, might have refused to deliver him pursuant to the order, and the agent of the plaintiffs on seeing him might have refused to accept him, as he ultimately did.

But a delivery of goods actually sold, is not necessary to pass the right to the vendee, if there be any thing given in earnest, or a payment of the whole, or a part of the purchase money, or a sufficient note or memorandum in writing of the bargain. Here there was an actual sale of the negro man, accompanied by payment of the whole of the purchase money, and a sufficient memorandum in writing of the bargain, whereby the property in the man passed from the defendant to the plaintiffs, and delivery was not necessary to give title, the property in the man being bound without. It is no objection therefore to the instruction given below, that there *419was not such a delivery and acceptance as is required in the 17th section of the statute of frauds.

But besides the instruction to the jury, that title to the negro man passed, the court directed them that the plaintiffs were not entitled to recover in the action, if they should believe from the testimony, that he was alive and in being, at the time the contract of sale was made, and it is to this branch of the instruction that the objection lies.

The receipt for the purchase money contains an express warranty of soundness, and it may have been, that the negro man was alive, and in being, at the time the contract of sale was made, and yet the plaintiffs be entitled to recover.

If the negro man had not cut his throat at the time of the sale, and was then sound within the terms of the warranty, but destroyed himself afterwards, (no matter how long or short a time after) the loss must fall upon the plaintiffs, for the property having passed to them by the sale, he was from that time at their risk.

But if he had cut his throat before, and that was unknown to the plaintiffs, or their agent, and was at the time of the sale, in that unsound, and dying condition, the warranty was broken, and the plaintiffs were under no obligation to receive him.

It is the received doctrine in this State, (though otherwise decided elsewhere,) that if a person sells an article (as a horse) with a warranty of soundness, which turns out to have been unsound at the time of the sale and warranty, the buyer may either keep the horse, and bring an action on the warranty ; or rescind the contract by a return of the horse, or offer to return him, in a reasonable time, so that the seller is placed in statu quo, and sue for, and recover back the purchase money, or so much as he has paid, in an action for money had and received, which is the character of this action. And perhaps it is no where doubted, that where in such a case, an action is brought, by the vendor for the purchase money, the vendee may set up the breach of the warranty as a defence to the action. And no solid or substantial reason is perceived, *420why, if in such a case the vendee may set up the breach of the warranty as a defence to an action against him for the purchase money, he may not, having paid the purchase money, recover it back in an action for money had and received. The contract is equally rescinded in both cases, and there is no more surprise, or danger of surprise in one, than in the other; and each has the effect to prevent a circuity of action.

This however is not the ordinary case of a sale and delivery of the thing sold. It was the intention of the parties, that the transaction should be consummated by á delivery of the negro man, which if the evidence be true, was not so consummated; but an offer only made by the sheriff to deliver him, after he was dead, and rejected by the agent of the plaintiffs, who, if the man had cut his throat before the contract of sale was made, was not only not bound to receive him when dead, his contract having been for the purchase of a living and sound man; but had a right to have rescinded the contract by declining to receive him in that dying condition, if the offer to deliver him had been made before his death. And the plaintiffs are entitled to recover back the money paid, which ex eequo et bono, the defendant ought to refund, the consideration having entirely failed. And it should have been so put to the jury. Whereas according to the instruction given, the plaintiffs would not be entitled to recover, if the man was alive, when the contract of sale was-made, notwithstanding he might have cut his throat before that time, and was then dying, which we think was wrong. And that if such was his state at the time of the contract, the plaintiffs are as well entitled to recover, as if he had been then dead; the consideration failing in either case.

The third instruction, “ that from the evidence in the cause, the plaintiffs could not maintain an action of assumpsit against the defendant for money had and received,” is equally objectionable, if it is to be understood as a direction to the jury, that an action of assumpsit would not lie, to recover back the purchase money, admitting that the man had‘cut his *421throat before the contract of sale was made; and wrong, if it was given upon the ground, that from the evidence in the cause, the man’s throat was cut after the contract of sale was made; as, if so to be understood, it was taking the question of fact from the jury, which it was their province to decide.

judgment reversed, and procedendo awarded.