Timberlake v. Thayer , 71 Miss. 279 ( 1893 )

Cooper, J.,

delivered the opinion of the court.

If we were authorized to make the law instead of announcing it as it is already made, we would unhesitatingly hold that one contracting to render personal service to another for a specified time, could, upon breach of the contract by himself, recover from that other for the value of the service rendered by him and received by that other, subject to a diminution of his demand to the extent of the damage flowing from his breach of contract. In Britton v. Turner, 6 N. H., 481, Judge Parker demonstrates, in an admirable and powerful opinion, the equity of such a rule; and it was held in that case that such was the rule of the common law. The courts of some of the states have followed or been influenced by that opinion, and have overturned or mitigated the rigorous rule of the common law. Pixler v. Nichols, 8 Ia., 106 (74 Am. Dec., 298); Coe v. Smith, 4 Ind., 79 (58 Am. Dec., 618); Riggs v. Howe, 25 Tex. Supp., 456 (78 Am. Dec., 584); Chamblee, v. Baker, 95 N. C., 98; Purcell v. Comber, 11 Neb., 209. But the decided weight of authority is to the contrary. Lawson on Contracts, § 470, n. 4, and authorities there cited. And it was decided at an early day in this state that an entire contract of this character could not be apportioned, and that under the circumstances named no recovery could be had by the pai’ty guilty of the breach of contract; that he could not recover on the special contract because he himself had not performed it, nor upon quantum meruit because of the existence of the special contract. Wooten v. Reed, 2 Smed. & M., 585. In Hariston v. Sale, 6 Smed. & M., 634, and Robinson v. Sanders, 24 Miss., 391, it was held that an overseer’s contract with his employer, though made for a definite time, was not an entire contract, and recoveries were allowed on the common counts.

The cases relied on to support the rule announced in these decisions were Byrd v. Boyd, 2 McCord (So. Ca.), 246; Eaken v. Harrison, Id., 249; McClure v. Pyatt, Id., 26. Of these, the leading case is Byrd v. Boyd; the others simply follow it. In Byrd v. Boyd, the court evidently legislates the exception into the law, and so, in effect, declared, for, after referring to the rale of the common law, the court proceeds to say: “There is, however, a third class of cases for which it is necessary to provide,” and then declares that these cases for which it is necessary for .the court “ to provide ” are “those where the employer reaps the full benefit of the services which have been rendered, but some circumstance occurs which renders his discharging the overseer necessary and justifiable, and that, perhaps, not immediately connected with the contract, as in the present case ”

The South Carolina court put its decj '-on expressly upon the ground of expediency, and confined is effect, by necessary implication, to the particular sort of contract under consideration. Since the abolition of slavery /e have no such contracts, stride, as those which formerly existed between employer and overseer, and the decisions in Wooten v. Reed and Hamilton v. Sale have no field of operation. The instructions for the plaintiff were properly given.

The defendant, who was the indorser of a promissory note executed by one Vandiver, introduced evidence tending to prove that, by an arrangement between Vandiver and Thayer, Thayer was to take up the note (which was then in the hands of a third person) for Vandiver, and Vandiver was to render service to him by supervising his farm until the crop should be gathered, in payment of the note. On this evidence, the defendant asked the court to instruct the jury that,' if such was the contract of the parties, and if Vandiver failed to perform his contract, Thayer had a right of action against him for breach of contract, but could not recover against the defendant, the indorser on the note. The court refused the instruction as asked, but modified it by inserting therein the words, “ and that Vandiver rendered the service as he contracted to do.” The instruction as asked was correct, and should have been given, and the modification inserted by the court robbed it of all beneficial operation for the defendant.

The defendant was only liable secondarily on the note, and if, by the arrangement between Thayer and Yandiver, Thayer’s light of action against Yandiver, the maker, was suspended, if but for a day, the indorser was forever discharged, and the mere breach of the contract by which it was suspended could not revive the obligation of the indorser. Randolph on Com. Paper, §§ 767, 768; Case v. Hawkins, 53 Miss., 702.

There is no evidence that the maker of the note was a resident of this state when the suit was brought. The question whether it was necessary for the plaintiff to have brought his action as prescribed,by § 3516, code 1892, is not presented. The defendant was so clearly a non-resident of the state, and therefore subject to attachment, that we decline to consider whether the instructions of the court given on the trial of the issue made on the attachment were or were not correct. No error of law would warrant the setting aside of the verdict on that issue, in the light of the testimony.

Judgment reversed,.