¶1—The vice of the argument made for the appellee consists in the fact, that it assumes that the plaintiff had the right to rescind the contract of hiring at her own election. If the hirer had violated the terms of the contract of hiring, then the owner would be ai’med with power, at her election, to treat the contract as rescinded, and to sue in trover as for a conversion. See Mosely v. Wilkinson, 24 Ala. 411; Hall v. Goodson, 32 Ala. 277. If, however, the hirer had not violated his contract, the owner had no right to rescind the contract, without the consent and concurrence of the hirer.
¶2The suit by the plaintiff’ to recover the value of her slave, did not and could not operate a rescission of the contract. It was, at most, a declaration of hers, evidenced by her suit, that she considered the contract broken by the hirer, and that she elected for that breach to rescind. The verdict and judgment negatived the existence of the breach, and affirmed the continuing obligation of the contract. These facts do not furnish the elements of an estoppel in this suit.
¶3Neither is there anything in the circumstances attending the former suit, or the expenses to which the defendants were thereby put, which gave to them a cause of action, or right to recoup the damages in this case. Conceding that her claim was unfounded, there is no evidence that she was influenced .by malicious motives. Luddington v. Peck, 2 Conn. 700.
¶4If the plaintiff had recovered in the former suit, that recovery and satisfaction of the judgment would have established the rescission of the contract, and would have estoppied the plaintiff from afterwards asserting its continuing efficacy.—Smith v. Hooks, 19 Ala. 101. The present case rests on a different principle.
¶5Judgment of the circuit court reversed, and cause remanded.