Brooke v. Waring , 7 Gill 5 ( 1848 )

Spence, J-.,

delivered the opinion of this court.

Neither of the bills of exceptions in this case, presented to the county court any question for decision upon the pleadings, and, of course, none is presented here. The only questions for our decision arise upon the proof, without reference tc the pleadings under which it was offered.

We assume, then, that the plaintiff’s declaration is such, as to entitle him to a judgment on the verdict of the jury on any finding in his favor, to which his proof may have shewn him entitled.

Questions of pleading out of view, and assuming, that the testimony in the cause was legally sufficient to have been left to the jury, to find the facts set out in the prayer of the appellant in his first bill of exceptions, should not the court have instructed the jury, that, if they found the facts to be as stated in either alternative of the prayer, that thé plaintiff was entitled to recover? Qur opinion is, that they should have so instructed them.

If the jury believed the terms of the original contract for the sale of the negro, were correctly stated in the prayer, we are at a loss to imagine, a sound objection to the appellant’s right to recover.

But, it is insisted, that conceding the correctness of the first hypothesis of the appellant’s prayer, that it would be clearly wrong to grant it upon the second, for the reason, that such an agreement as that stated in the prayer, if made after the first contract for the sale of the negro, would be a nudum pactum> for which no consideration was given or received between the parties. Many authorities have been referred to, but, when applied to this case, they fail to convince us of the truth of the principle which they were adduced to establish. Correctly to interpret this latter agreement, and to decide upon its legal validity, it is necessary, first, to ascertain what the agreement was, and what would be its operation upon the rights and interests of the parties. The language of the prayer assumes, and the proof in the cause shews, that it was made in the lifetime of the negro, and before the delivery of her, was rendered impracticable. What the terms of this agreement were, its statement in the prayer conclusively shews, as follows: “It was agreed between the said defendant and plaintiff’s intestate, that the sum of one hundred dollars, which had been paid to him, as aforesaid, by the plaintiff’s intestate, should be returned or refunded to said plaintiff’s intestate, in case the said slave should not be afterwards delivered or put into his possession.” If this stipulation formed no part of the original contract between the parties, it cannot be doubted, (but for the objection of its being a nude pact,) that, by their subsequently entering into it, the stipulation was incorporated into the original contract, was a modification thereof, and became a part of it, and was as obligatory upon the parties thereto, as if originally a part thereof.

Bui what would have been the condition of the parties under the original contract, in case the appellee had failed to deliver the negro? the appellant would have been entitled to recover, and the appellee bound to pay, whatever amount of damages resulted to the appellant by reason of such failure. It might have been much more, it might have been much less, than one hundred dollars. What would be the finding of a jury in the case, could not be known.

Under such circumstances, the stipulation or modification of their contract is entered into, by which the appellant, in consideration of the appellees agreeing, (upon the happening of the contingency of non-delivery,) to pay him one hundred dollars certain, aud relinquish his, the appellee’s, right to be discharged upon the payment of a less sum; that he, the appellant, would agree to accept it, and relinquish his right to claim of the appellee a larger sum, to which his damages might in fact amount, we think the principle of nudum pactum, can have no application to such a transaction.

Without intimating any opinion as to the sufficiency in point of fact, of the testimony before the jury, we regard the evidence in the cause as authorising the court to submit to the jury the finding of tile facts stated in either alternative of the appellant’s prayer.

It follows from what we have said, that the county court erred in refusing to grant the appellant’s prayer, contained in his first bill of exceptions, and, consequently, that the court erred in granting the appellee’s prayer, contained in the appellant’s second bill of exceptions.

Judgment reversed on both bills of exceptions, and procedendo awarded.

JUDGMENT REVERSED AND FROCEDENDO AWARDED,