Johnson & Sloan v. Clarke , 22 Ga. 541 ( 1857 )

By the Court.

McDonald, J.

delivering the opinion.

On the trial of this cause in the Court below, the plaintiffs counsel offered in evidence the depositions of Michael N. Clarke and William Scott Clarke, taken by commission. They were objected to by defendants counsel, on the ground that the case was not stated at the heading of the answers.

[1.] The case was stated correctly at the head of the interrogatories and in the body of the commission, and the interrogatories, commission, and depositions, were attached together and sent by mail under cover of an envelope, on which the case was properly stated. The Court rejected the evidence. We think the Court erred in ruling them out. There was sufficient evidence that the depositions were the identical answers given under the authority of the commission, to the interrogatories to which they were attached.

[2.] In regard to the other points in this case, we will remark that an important point of the evidence introduced on the trial before the Court below, is not in the record before us, to-wit: the exemplification of the action of trover brought by Thomas Ii. Claike vs. Michael N. Clarke. It was for the institution and prosecution of this suit, that the contract sued on was made. The contract is contained in two instruments, one for the payment of fifty dollars absolutely, and the other for the payment of one hundred and fifty dollars, conditionally. The latter instrument recites that Thomas H. Clarke is about to commence a suit, “for the recovery of certain negroesNothing is said about the hire. The instrument says further, that in the event of recovering, the said Thomas agrees to pay said Johnson & Sloan one hundred and fifty dollars. Now, there can be no doubt, that, if the cause had been tried and the plaintiff had recovered, the negroes, but, for some cause, the jury had given no hire, the plaintiff in this case action would have been entitled to the hundred and fifty dollars; such are the words of the contract. If the contract is to be extended beyond its words, there must be something to justify the Court in so construing it. It does not appear in the proceedings as exhibited in this record, that, at the time of the institution of the suit, the plaintiff intended to sue for hire His affidavit to hold the defendant to bail is not before us. He cannot therefore say that he claimed hire. Mr. Williams, who gives evidence of the affidavit, says nothing of the value of the hire claimed.

The plaintiff in the action of trover, directed his attorneys, ■the plaintiffs here, to make the defendant pay for the hire if they could. He did not seem to claim it. The exemplification of the trover suit, is not before us to enable us to deter mine, whether the suit was brought for the hire, as well as for the negroes. If it was so brought, it is evidence of the interpretation which the plaintiffs put upon their own contract, and would perhaps have required of us to construe it in the same way, as the hire is usually sued for, when negroes are.

There are peculiar circumstances in this case, which may have induced ' the plaintiff to forbear to claim it. And, on the whole, it may be safest to consider that the parties expressed their contract as they intended, and that the desire of the party was to recover the negroes. The plaintiffs in this action was bound to execute their contract, and was not bound by the instructions of their client if they went beyond the requisitions of the contract.

[3.] From the evidence in this cause, if the plaintiffs were entitled to recover at all, they must have recovered on their contract, and not on a quantum meruit, or quantum valebant. They voluntarily abandoned the suit, and if they did that contrary to their contract, they are not entitled to recover at all, the other party having derived no benefit from their services.

The Court below having erred in rejecting the evidence of the witnesses Clark, and not having charged the law of this contract as we construe it from the evidence in .this record, his judgment must be reversed.

Judgment reversed.