Sample v. . Bell , 44 N.C. 338 ( 1853 )

It further appeared that afterwards, and during the year, Jerry and other slaves, who had been hired by the plaintiff, were seen by the defendant in the streets of Plymouth, which is in Washington County, on their way to work at a shingle swamp of the plaintiff, in Martin County, and defendant was told by Ray, who was then present, that plaintiff had applied to him to have the restrictions removed in regard to Jerry, but that he had refused to do so; and thereupon defendant told Jerry, who was not far from him, "that he was not to go out of the county, unless compelled or forced to go out," and did not otherwise interfere with him.

It further appeared that Jerry did not then proceed on to Martin County, but remained in Washington several weeks; he was afterwards put to work in Martin, before the expiration of the year of hire.

It was insisted for the defendant, that the acts done by him did not amount to a conversion of Jerry; also that he had the right to give such directions to Jerry, they being in conformity with the terms of the bailment.

These points were reserved, by consent of parties, by his Honor, JudgeSaunders, before whom the case was tried, at TYRRELL, on the last Spring Circuit; and it was agreed that if his Honor should be of opinion with the defendant, a nonsuit should be entered. There was a verdict for the plaintiff. Afterwards, his Honor being of opinion that the restriction upon carrying the slave out of the county, was not such a condition, as that its violation by the hirer justified the owner in interfering with the slave, and that the order of the owner as master, and the obedience of the slave, although for a moment, was such an injury to the rights of the plaintiff, as entitled him to damages, though only nominal, gave judgment for the plaintiff. From which judgment the defendant appealed. The terms of the contract, by which the defendant hired his slave, Jerry, to Ray, from whom the plaintiff got him, are not all set forth in the bill of exceptions; but it is stated that one of them was, that the hirer should not carry the slave out of the county of Washington. The question is, whether that stipulation is to be treated as a condition, the breach of which put an end to the contract, and authorized the defendant to retake his slave, or whether it is to be regarded as a mutual, independent covenant or promise, for the breach of which the defendant might sue and recover whatever damages he had thereby sustained. In stating this to be the question, we assume that the conduct of the defendant towards his slave, Jerry, in the streets of Plymouth, was an unlawful interference with the rights of the plaintiff (as we think it was), unless the contract of hiring had been put an end to, by the intention of the plaintiff to take the slave out of the county. We are of the opinion, that the stipulation in question cannot be treated as a condition, because such a construction would make the contract operate very unequally between the parties; as, for instance, if the plaintiff had, the day after the hiring, carried the slave out of the county, and kept him out of it for a week, the defendant could have retaken him, and yet have claimed the whole amount of the hire for the year. But suppose it were to be taken as a condition to defeat the estate or interest of the plaintiff, the forfeiture had not been incurred at the time of the alleged unlawful interference of the defendant, for at that time the slave had not been carried out of the county.

The true construction of the stipulation, is to consider it a mutual, independent promise, because it went to a part only of the consideration on the other side, and on breach of it, may be paid for in damages. Platt on Cov., 90 (3 L. Lib., 40); 2 Steph. N. P., 1072. In a case which came before this Court, Twidy v. Saunderson, 31 N.C. 5, the owners sued the hirer for the breach of a similar stipulation, and recovered substantial damages. Without deciding whether the conduct of the defendant complained of, amounted to a conversion, so as to sustain (341) the count for trover, we hold that it was an unauthorized interference with the rights of the plaintiff, and entitled him to recover on the second count for the tort. The judgment must be affirmed.

PER CURIAM. Judgment affirmed.

Cited: McClees v. Sikes, 46 N.C. 311.