Bacot v. Parnell ( 1831 )

O’Neall, J.

delivered the opinion of the Court.

A contract of hiring is generally an entire contract; but still there are cases in which an apportionment is allowed. One of the most common cases is that of an overseer. In the case of Byrd v. Boyd, 4 M‘C. 246, the rule was established, that in cases of this class, it might always be fairly left to the discretion of a jury, where one of the parties had put an end to the contract, to say, whether the entire sum agreed to be paid, a part of it, or none should be paid. In other cases of hiring, the act of God which prevents the entire performance, should, it seems, operate no prejudice to either party. In the case of George v. Elliott, 2 Hen. and Munf. 5, it was held, that where a slave died during the time for which he was hired, there should be an apportionment of his hire. In the case of Ripley v. Wightman, 4 M‘C. 447, it was held, that where a house, rented for a year, was rendered untenantable by a storm, the rent ought to be apportioned according to the time it was occupied. These cases are decisive of the question involved in this. The case of George v. Elliott, is indeed the very case before us: and although it is an authority not at all binding on us, yet as the decision of the supreme tribunal of a sister State, I should be disposed to follow it on a question of novel impression here. For in relation to our slave property, the rules should be as nearly the same as may be, in all the slave holding States.

The case of Ripley v. Wightman, is however a perfectly analogous decision of our own courts, and by it this case must be decided. In that case, the act of God was held to be a rescission of the contract; and the parties were thereby placed upon the footing, that one was to receive, and the other to pay, so much, as the rent from the time the lease commenced to the time it was ended by the storm, was reasonably worth. In this case the same rule applies; the act of God, the death of the slave, has ended the contract of hiring: the owner is intitled to receive, and the hirer is bound to pay, only so much as the hire was worth from the commencement of the hiring until the slave’s death.

Motion refused.