Berry v. Harper , 4 G. & J. 467 ( 1832 )

Martin, J.,

delivered the opinion of the court.

There is nothing in the objection, that it was not competent for the court to instruct the jury, upon the sufficiency of the declaration at the trial. This doctrine is clearly settled in Chitty Pl. 293. Aldridge and Higdon vs. Turner, 1 Gill and Johns. 427.

We think the court were wrong in the instructions they gave the jury. It is certainly necessary to set out in the declaration a contract binding on both parties, where a suit is instituted, to recover damages for the non-performance of the contract. But that is fully complied with in this case. The declaration states, that there was an agreement between Elizabeth Magruder, (before her intermarriage with Samuel Harper,) and Thomas Berry, that she would bargain and sell to the said Berry, a negro slave belonging to her, named Jack, for the price of two hundred dollars, to be paid when the said Berry shouldgbe thereto requested. That they mutually promised to observe the said agreement on their several parts, and that in pursuance of it, Jack was delivered to Berry. Where is the want of mutuality in the ■contract? E. Magruder sold and delivered Jack to Berry, and he in consideration thereof promised to pay the purchase money on demand. The judgment therefore must be reversed, and then the question is presented if a procedendo should be awarded. This depends entirely whether Berry, from the facts disclosed by the record, could recover in a second trial. Turnpike Co. vs. Barnes, 6 Harr, and Johns. 61.

This suit was brought against the husband and wife. The writ is joint, and if returned cannot be amended, although subsequent proceedings founded on it may. The declaration claims damages for the non performance of the contract made by Elizabeth Magruder, whilst she was sole, but the evidence produced by the plaintiff himself, shows a full performance of the contract on her part, by a delivery of Jack to him. If Berry has sustained an injury by the loss of his negro, his remedy is not on the contract, but must be sought against Samuel Harper alone, who, after his intermarriage with Elizabeth Magruder, tortiously took this negro out of the possession of Berry. This may be a good cause of action against Harper, but cannot subject his wife to a suit. An action against husband and wife cannot be sustained for a tort committed by the husband.

JTXDGMEET REVERSED.