Treatin the amended answer as an answer in addition to the general denial, we do not perceive any error in the refusal of the court below to instruct the jury, as requested, with respect to its effect. The rule which prevails in Louisiana on the subject of general and special pleas, as declared in the decisions of her courts, is that they may be presented together, if consistent with each other. Inconsistent or contradictory pleas alone are forbidden. #fn-s-s [1]
The amended answer amounts only to the averment of a fact which, if established, would tend to show that the warranty alleged in the petition was not given in the absolute form there averred. It only specifies a particular fact in aid of the general denial.
The second exception is to that part of the charge which relates to the period within which it was necessary for the purchaser to tender back or offer to return the slaves. The court charged, 'that in order to a complete rescission of the contract, the tender should have been made in a reasonable time; and if the jury found that it was not made in a reasonable time, the plaintiff was only entitled to recover for the damages he had sustained by the slaves being defective.' The civil code of Louisiana, when the action was commenced, limited to one year the time in which actions could be brought for the rescission of sales of slaves on account of redhibitory defects, and hence it is contended, that the purchaser had the same period within which to offer to return the slaves to the vendor.
The rule that he who seeks to rescind a contract of sale, must first offer to return the property received, and place the other party in the position he formerly occupied, so far as practicable, prevails equally at the civil and the common law. It is a rule founded in natural justice, and requires that the offer shall be made by the purchaser to his vendor upon the discovery of the defects for which the rescission is asked. The vendor may then receive back the property, and be able by proper care and attention to preserve it, or he may have recourse upon other parties, the remedies against whom might be lost by delay. He must be permitted to judge for himself what measures are necessary for his interest and protection, and if the purchaser by delay deprives him of the opportunity of thus protecting himself, he cannot demand a rescission of the contract.
The purchaser must use reasonable diligence to apprise his vendor of the defects alleged, and to make the tender; and what is reasonable diligence is a question of fact, to be decided by the jury according to the special circumstances of each case. #fn-s-s-s [2]
JUDGMENT AFFIRMED.
Notes edit