Brown v. Lowens , 33 Ky. 473 ( 1835 )

Chief Justice Robertson

delivered the Opinion of the Court.

This writ of error is brought to reverse a judgment by default, in an action of covenant on the following writing: — “ For and in consideration of the services of a “ negro man James, the property of William Lowens, for “ the next year, commencing on the first day of January “next, and ending the 25th day of December, 1833, I “ promise to pay, on or before the 25th day of December, 1833, to said William Lowens, the sum of ninety “ dollars, and furnish said negro man with two summer “ suits of good clothes, one fall suit of jeans, and one “ pair of shoes. November 6, 1832.

“ Geo. W. Brown."

The declaration does not aver, that Brown had the benefit of the negro’s services, or .that the negro had ever been delivered to him; and the only question which we shall consider, is whether, for want of some 'such averment, the declaration is fatally defective.

Considering the covenant according to its literal import, “the services" of the negro must be deemed to have been a precedent condition.

In consideration of the services, and not or an agreement for hire or for services, Brown’s covenant was to be pnriormed. And this interpretation is fortified by the tenor of the entire writing, and by the established rules of legal construction. The contract was made some time before the service was to commence, and the money was to be paid on the day on which the service was to be completed. The peculiar phraseology of the covenant'must be presumed to have been intended by the parties for some peculiar effect; and that must have been, that Brown’s undertaking should depend on his getting the negro, and enjoying the benefit of his services for the year.

We are of opinion, therefore, that the declaration is substantially defective, and shows no breach by Brown* and consequently no legal cause of action against him, on his covenant.

Wherefore, it is considered, that the judgment be reversed, and the cause, remanded — with instructions to ■sustain the demurrer to the declaration, and allow an amendment.