Wolfe v. Parham , 18 Ala. 441 ( 1850 )

CHILTON, J.

The first question is, whether upon the trial of a contest between the plaintiff and the garnishee, upon an appeal from a justice of the peace, the court may look to the original papers, and the copy of the judgment, entered upon the justice’s docket, and certified by him to the Circuit Court, for the purpose of determining whether the plaintiff had obtained a judgment against the original debtor.

The statute requires the justice, when an appeal is taken within the prescribed time, to send up to the clerk of the court, to which the appeal is taken, a statement of the case, with all the papers and the bond thereunto belonging. — Clay’s Dig. 314, § 9. By the ilth section, (page 315,) it is provided, that when such cause is removed into any court by appeal, &c., and the judgment of the justice is affirmed, judgment shall be entered against the security, as well as the principal, and execution may issue against both of them, &c. These and several other statutes, which might be refered to, show that, although the proceedings had in the cause before the justice are not, properly speaking, matters of record, yet when the papers and judgment entries are sent up, properly certified by the justice, the appellate court will regard them as papers in the cause, and will look to them, without proof of their execution or identity, further than such as the justice’s certificate may afford, for the purpose of ascertaining what was done in the cause before the justice. There was, therefore, no error in regarding them as evidence of a judgment had in the cause before the justice in favor of Parham against Tucker.

2. Several objections were taken to the deposition of one Mabry, respecting the regularity of taking it, but as the bill of exceptions does not set out the affidavit, commission, or deposition, or show that the grounds of the objection were sustained by them, we cannot revise the action of the primary court upon them. We may, however, observe that the objections, so far as they are disclosed by the record, have no force in them; that it was proper to make the affidavit of the materiality of the testimony, &c., before the clerk of the court, where the suit was pending (Clay’s Dig. p. 64-5, 1, 2, 3;) — that the commission directed the commissioner to take the deposition “ on tomorrow,” the commission bearing a specified date, was regular; and the fact that the commissioner was not sworn furnished no reason for rejecting the deposition, as the statute does not require them to be sworn.

3. As proof of indebtedness on the part of Wolfe to Tucker, the plaintiff below introduced testimony to show that Wolfe had employed Tucker to go to the State of Mississippi, and to take and bring to him at Mobile three negro slaves, claimed by Wolfe as his property, but which were then supposed to be in the possession of some one in the State of Mississippi; and that for this service he agreed to give Tucker one of said slaves, or a sum equal to one-third the value of them. It was shown that Tucker had succeeded in taking and bringing to Mobile two of said slaves, and that afterwards Wolfe and Tucker obtained possession of the third negro, and that they all went into Wolfe’s possession in Mobile. The plaintiff then offered the testimony of E. S. Dargan, which showed, that, asa solicitor in chancery, he had filed a bill for Wolfe and one Mabry against M. J. McRea, of Mississippi, and Zunts and Lang, of Mobile, for the recovery of three negro slaves, and that the parties compromised said suit, the defendants paying $1800, out of which his fee was deducted, and the remainder was divided between Wolfe and Mabry, the greater portion, however, to Wolfe. This proof was objected to on the ground that it was irrelevant, but, upon the declaration of the counsel for the plaintiff, that he would introduce proof to show that these were the same slaves brought by Tucker from Mississippi, the objection was overruled. Whether the proof proposed to be made, as to the identity of the slaves, was afterwards in fact made, the record does not disclose, but we must presume it was, otherwise the bill of exceptions would have shown it. Thus considered, we think the testimony was not wholly irrelevant, as it tended to show the slaves were the property and under the control of Wolfe, and that he had disposed of them as his own, and as showing that Wolfe elected, if any thing was due Tucker, to pay in money rather than in one of said slaves.

4. It was also showm that after the slaves came to the possession of Wolfe, one McRea obtained possession of them from him by action of detinue. The court was asked to charge that if the slaves had been taken out of the possession of Wolfe, before the service of the garnishment, then the plaintiff could not recover. This charge the court refused, and we think, very properly; for if Tucker had complied with his contract, or its full execution had been waived by Wolfe, and he had only partially executed it, he could not be deprived of his compensation by the act of a third party, to which he was in no wise privy.

5 &6. Therewassomeevidence,tendingtoprovethatthecontract between Wolfe and Tucker was entire, and that the latter had only partially complied with it — had taken and delivered two only of the three slaves, which he engaged to deliver to Wolfe. Without expressing any opinion as to the weight this evidence would be entitled to before the jury, we think it was sufficient to authorise the counsel for the defendant below to ask the court to charge, “ that if the contract was entire, to take and deliver to Wolfe three negroes, and Tucker ouly delivered two, the plaintiff was not entitled to recover.” This charge was asked and refused, and we think it very clear the court in its refusal committed an error. Where the contract is entire, there must be a complete performance to entitle the party to the stipulated compensation. — Stewart v. Weaver, 12 Ala. 540; Story on Contracts §§ 4S0-1; Nesbit v. Drew, 17 Ala. 379 ; Leaird v. Davis, ib. 448; 1 Story’s Eq. Juris. 470. And the contract is said to be entire when a gross sum is to be paid for a certain aud definite consideration. — Story on Contracts, § 22. This charge was proper and should have been given as it was asked. That there was evidence, also, conducing to show a waiver, on the part of Wolfe, of the entire fulfilment of the contract on the part of Tucker, would render it proper for the court to give other instructions suited to this phase of the case, but furnished no ground for refusing the instruction, predicated upon the contrary hypothesis, which the proof tended to establish.

7. Such contracts may become several by the consent of the parties, either express or implied. Ordinarily, the acceptance of a part performance, without objection, is regarded as a waiver of the entire fulfilment by the other party. As if a person agrees to pay a certain gross sum for three particular slaves, to be delivered by a certain time, and the vendor, from casualty or other cause, is enabled to deliver but two, the acceptance of the two, without objection, is a waiver of the entirety of the contract, and entitles the vendor to recover their ratable value. — Story on Contracts, § 25, and cases cited in notes. But I apprehend we must look to the nature of the contract, the manner in which it is to be performed, as well as to the subject matter of it, to ascertain the effect of a partial performance upon the rights of the parties growing out of it. Where the contract provides for the delivery of ponderous articles, which according to the custom of the country are to be delivered in parcels, or by wagon loads, in such case, though the party may accept a portion thereof in the course of delivery, he is not bound to pay until the whole is delivered. — McGehee v. Hill, 1 Ala. 140. So in the case before us, considering the nature of the undertaking and the character of the property, we think that if the slaves belonged to Wolfe, when two of them were delivered, and were accepted by him, he had the right to receive them, without waiving his right .to insist upon the entire fulfilment of the contract on the part of Tucker. No time being fixed, when he should-deliver the slaves, the law allowed Tucker a reasonable period within which to comply fully with his engagement, and Wolfe had the right to treat the delivery of the two as- in the progress of completing the contract, and to insist upon the delivery of the third, as a condition precedent to Tucker’s right to recover. Whether, however, he ‘ thus accepted them, or received them as a- completion of Tucker’s engagement, as far as his compliance was practicable, is a question, which, under the-circumstances of this case, should have been-left to the jury. It is very clear, from the evidence disclosed by this record, that the court could not properly assert, as a'legal consequence of the acceptance of the two-slaves, that Wolfe waived an entire compliance on-the part of Tucker, thereby entitling the latter to recover a reasonable compensation for his services'. Such is the effect of the charge which the court gave, and which was also erroneous.

8. But it is insisted that there ‘is no proof that Tucker ever made his election., whether he would take one of the slaves, or a sum in money equal to one third their value, and that consequently, .the interest going to. him cannot be the subject of garnisbmént. To this we repjy that Wolfe is the promissor. The stipulation to let Tucker have one of the negroes, or to pay so much in money, was intended for his benefit, and he, and not Tucker., was the party to make the election. Jf, therefore, the contract was complied with by Tucker, and Wolfe, either by the loss of the slaves by title paramount, or by voluntarily disposing of them in the arrangement of compromise, as deposed to by Judge Dargan, has become disabled from letting Tucker have one of the slaves, this terminates his election, and imposes on him the obligation to pay the monied compensation, for which indebitatus assumpsit will lie. So also, if the entire contract was waived, and a partial performance accepted on the part of Wolfe, whereby a right of action accrued to recover a reasonable compensation, then the process of garnishment lies to subject the demand to the satisfaction of Tucker’s indebtedness.

Let the judgment be reversed and the cause remanded.

Dargan, G. J., not sitting.