Ashcraft v. . Allen , 26 N.C. 96 ( 1843 )

Assumpsit, in which the plaintiff's counsel, in opening the case, stated that he declared on a special contract in writing, of which the following is a copy, viz.:

"NORTH CAROLINA — Anson County — ss.

"This is to certify that I am to pay John Ashcraft four hundred dollars for the delivery of his brother James Ashcraft to me, in Wadesboro, between this and September next, this 1 May, 1838. T. H. ALLEN."

The plaintiff then called as a witness one Redfearn, who testified that the defendant was sheriff of the county of Anson during 1838, and as such had one James Ashcraft, a brother of the plaintiff, in his custody in the public jail of his county; that the witness was then a deputy of the defendant, and heard him say that James Ashcraft had broken jail and made his escape, and the witness saw him at his (James's) house, and the plaintiff, his brother, with him, but he could not state at what time this took place.

James Ashcraft was then called for the plaintiff, and stated that he was confined in the jail of Anson for debts amounting in the (97) whole to ten or twelve thousand dollars; that he made his escape therefrom by breaking the jail without the knowledge, contrivance or assistance of any other person; that after escaping he resolved upon going to Alabama, and with that purpose went to take leave of his father and mother and his own family; that he first met his brother, the plaintiff, at his father's, and informed him of his intention of going to the Southwest; that in a few days afterwards his brother came to him in the woods near his (the witness's) house and showed him the written contract above recited, and told him the defendant would be bound for his debts unless he was retaken; that he then refused to surrender himself, but after some further conversation told his brother that he intended to go on through Camden and Columbia, in South Carolina, and that if his brother would meet him the next day at a place he designated in South Carolina he would tell him his final determination with regard to the surrender of himself; that his brother did meet him at the time and place appointed, and he at last agreed to surrender himself to his brother upon condition that he should be permitted to go home and see his family before being delivered up to the sheriff; that he and his brother then, after remaining in the woods all night, went together to the house of the witness, where they arrived the next morning; that finding one of his children very sick, he requested his brother to permit him to remain at home until the next morning, which his brother consented to do, and remained with him; that during this time he considered himself the prisoner of his brother, though he was not confined in any way; that early the next morning, before the witness had got up, the defendant came in company with three or four other persons, some of whom were armed, to the house of the witness, and as soon as he had dressed himself entered the room where he was and said, "I am glad to see you, you must go with me to Wadesboro"; that the plaintiff then stepped into the room and said, "No, he is my prisoner, and I am going to take him to Wadesboro"; that the witness requested them to wait until he could have breakfast, but the defendant (98) insisted upon setting off immediately, and they all went to Wadesboro; that the plaintiff went in company with the defendant and his attendants, and after entering the town, said to the defendant, "I now surrender you my brother," to which the defendant replied, "I have had him all along," but the witness said he had been his brother's prisoner. This witness stated further that the plaintiff persuaded the witness to surrender, and, overcome by his persuasion, he consented to surrender himself as the prisoner of the plaintiff, to be by him delivered in Wadesboro to the defendant, provided the plaintiff would permit the witness first to go home and visit his family; that this was in the spring of 1838; that the witness was returned to the jail in about a fortnight after he had escaped. This witness also stated that the contract above recited is the same which the plaintiff exhibited to the witness in the woods; that he had no knowledge of this contract until it was exhibited to him in the woods, nor had any reason to expect that any such contract would have been made by the plaintiff.

The plaintiff here closed his case, when the court intimated an opinion that the action could not be sustained, in submission to which the plaintiff submitted to a judgment of nonsuit.

A motion was subsequently made to have the nonsuit set aside and a new trial granted, the plaintiff's counsel alleging that he was entitled to recover either upon the ground that he had performed his part of the contract or that, if he had not done so, he was prevented by the act of the defendant himself, and that at all events he was entitled to recover upon a count for a quantum meruit. The court held that if the action could not be sustained upon the special contract it could not be sustained at all, and that a count upon a quantum meruit would not now be allowed without the defendant's consent, which was not given; that the plaintiff had not proved a compliance with his part of the contract, which was essential to the maintenance of his action; that his permitting his brother to go home and remain there a day justified the defendant in taking him himself, and having done so, the plaintiff (99) had no longer any claim to compensation under the contract. The court held further that if it were contended for the plaintiff that under the contract he had a right to give his brother ease, then the contract was against the policy of the law and void. The motion for a new trial being overruled, the plaintiff appealed. It is needless to inquire whether there was evidence to sustain a count for a quantum meruit, since there was no such count in the declaration, and the court had, undoubtedly, the power to refuse permission to add it. It is likewise true that, as the action is founded on a special agreement, whereby the defendant bound himself to pay a stipulated sum of money on the performance of a precedent act by the plaintiff, the latter cannot recover without showing a performance of that act or a sufficient excuse for its nonperformance. His Honor was correct in holding that the plaintiff had not shown a compliance with his part of the contract by performing the precise act to be done by him, for he did not deliver John Ashcraft to the defendant in Wadesboro, and the sheriff no doubt had the right to retake his prisoner, and did retake him, before he was brought to him "in Wadesboro."

But the Court is nevertheless of opinion that it was not correct to nonsuit the plaintiff. Of the credibility of the testimony the jury are the judges, and there was evidence tending to show — and if believed, showing — that the plaintiff was in the course and progress towards the performance of the condition on his part, and would have performed it literally according to its terms if he had not been prevented by the act of the defendant himself. That is always sufficient, for he who prevents the performance of a thing of which he is to have the benefit (100) cannot insist on any advantage from its nonperformance. In such a case the act is considered as done as far as respects the rights to arise upon its performance to him who was to perform it. An averment, therefore, in the declaration that the plaintiff had retaken the prisoner and had him in his power and custody with the intention to carry him to Wadesboro and there to deliver him to the defendant, and that he could have so carried and delivered him, and would have done so but that the defendant took the prisoner from the power and custody of the plaintiff, and thereby hindered and prevented him from making the delivery, supported by due proof, would, in our opinion, entitle the plaintiff to recover. To hold otherwise is merely sticking to the letter without regard to the substance of the agreement, and would occasion the evasion of the clearest stipulation by tricks and subterfuge. The real object of this contract was to enable a sheriff to retake a debtor who had escaped, and thus save himself from heavy liabilities; and he supposed that the plaintiff, either by his influence with his brother, who was the debtor, or by other means, could bring about that end, for which, if he could and would, the sheriff agreed to pay him a reward. But in the agreement a time and place of performance are specified, on which indeed the defendant has a right to insist as a condition, but not so to insist on it as to defeat the rights of the other party, notwithstanding the agreement has been substantially performed by the other party, and the defendant has had the same benefit from it as if it had been a literal performance. Suppose the defendant had accepted his prisoner from the plaintiff at his home in the country, it cannot be disputed but that would be the same as a delivery in Wadesboro. Suppose that, learning that the plaintiff was bringing his brother to town for the purpose of delivering him, the defendant had met them just out of town and, as he had a right to do, had then taken the debtor into his own custody, the same consequence must follow. It is the same thing in the events that happened, except that the evidence is not so plain and convincing that the plaintiff had in fact the power over the debtor, and with the power the will to restore him to the imprisonment from which he (101) escaped. But as to the credit due to the evidence, or the inference from it as to the purposes of the plaintiff, they fall to the province of the jury to be decided. We apprehend also that there is nothing in the policy of the law to forbid such a contract as this, nor to impeach the right of the plaintiff under it on the score that he gave ease to the debtor. That is a question between the creditors and the sheriff, and the acts of the plaintiff would not have affected it at all. The plaintiff was not the defendant's deputy, nor had from him any authority whatever, and therefore his acts did not induce any responsibility on the sheriff. The rights of these parties grow out of the stipulations of the agreement between them, whereby the plaintiff undertakes, if he can, by his own authority or influence, to place his brother again in the power of the sheriff; and upon his doing so within a time specified, the sheriff engages to pay him so much money. As between them, the law enforces no diligence more speedy than that for which they contracted. If, indeed, the plaintiff would not deliver the prisoner before the sheriff was able, of himself, to take him he would lose his bargain, because the sheriff does certainly not depart from his own right to retake him, and he might exercise it for his own security, provided only that he did not thereby stop the plaintiff from fulfilling literally his part of the agreement, which he had fulfilled substantially.

PER CURIAM. Venire de novo.

Cited: Buffkin v. Baird, 73 N.C. 291.

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