Robinson v. Varnell , 16 Tex. 382 ( 1856 )

Wheeler, J.

The record presents but two instructions given at the instance of the plaintiff. The brief of counsel for the appellant mentions other instructions, as having been given ; and as the counsel have appeared only by brief, it is not improbable that the instructions of which they complain, were given, and inadvertently omitted in making up the transcript, and that the omission has escaped the notice of counsel. However, as there is no suggestion of a diminution of the record; we must take it that it is complete, for all the purposes of this appeal; whatever cause we may have, outside of the record itself, to suspect that, in point of fact, it is not. We are relieved from any embarrassment we might feel in deciding upon what we have reason to suspect is not a complete record, from the consideration, that, if the instructions set out in the brief appeared by the record, it would not materially vary the case. They may be obnoxious to criticism ; but, considered in connexion with the other instructions given, and in reference to the evidence, it is not perceived that there is any material error in the instructions, as they respect the defendant’s liability for his failure to return the negro according to his contract, and his misuse, or abuse of him, which occasioned Ms loss to the plaintiff.

To the objection, urged to the first instruction, said to have been given, that it did not embrace every predicament of fact, which it was necessary for the jury to consider in making up their verdict, it might be a sufficient answer, that other instructions given supplied the omission. It is not to be supposed that the jury derived their view of the law of the case from a single proposition embraced in the charge; but from attending to the entire charge as given them by the Court.— NTor, where the charge given was not wrong in point of law, will it, in general, be a ground for reversing the judgment, that it did not embrace all the law applicable to the case. If the defendant desired that the law should be given in charge to the jury upon other points pertinent to the evidence, he should have asked such instructions as he deemed proper. If proper instructions had been refused, their refusal would have been error. But it cannot be assigned as error, that the Court omitted instructions which might with propriety have been given ; when it does not appear that the consequence has been the misapprehension by the jury of the law of the case.— The observations of Chief Justice Marshall, in Armstrong v. Toler (11 Wheat. 276,) are pertinent to this objection to the charge. “ Supposing the opinions actually contained in the “ charge to be correct, it is still contended to be liable to ex- “ ception, because there is a material part of the very case “ which it does not embrace.” “ Without entering into the in- “ quiry whether this criticism on the charge be well or ill “ founded, the Court think it proper to declare,, in explicit “ terms, that the plaintiff in error cannot avail himself of it in “ this stage of the cause.” * * “ If the defendant’s coun- “ sel wished the instruction of the Judge to the jury, on any “ point which was omitted in the charge, his course was to “ suggest the point, and request an opinion on it. If counsel “ may, without pursuing this course, spread the .whole testimo- “ ny on the record, and then, by a general exception to the “ charge, enable himself to'Jake advantage, not only of a misdi- “ rection, but of any omission to notice any question which may “ be supposed, by this Court, to have arisen in the case, such a “ course would obviously transfer to the Supreme Court, the ‘‘ appropriate duties of a Circuit Court, and cannot be counte- “ nanced.” Here, the substance of the evidence is spread upon the record by the statement of facts, the appropriate office of which is to enable this Court to determine whether the Court below erred in refusing a new trial. But the mere omission of the Court to give instruction not asked by the party, is not, of itself, a sufficient ground for awarding a new trial. If the charge of the Court were so framed as to make the decision of the case turn upon a partial, or not sufficiently comprehensive view of the facts, by which injustice was done, it might be otherwise. But we see no cause to apprehend that such has been the case; or that the jury were not sufficiently advised, by the several instructions given them by the Court, of the law applicable to the issues and the evidence.

'J he only defence, on which instructions were asked by the defendant, was the statute of limitations ; and the refusal of the Court to sustain this defence, as to so much of the suit as sought the recovery of damages for the breach of the contract to deliver the negro at the time appointed, is the principal ground of error relied on. It is material, therefore, to determine what period of limitation is applicable to the case.

It is admitted that the action is founded on a contract in writing ; but, it is insisted the limitation of four years does not apply, because it is not an “ action of debt.” It is true, it is not an action of debt, nor an action to recover a debt, technically so called. Technically, we have no such action as an action of debt: If we were to construe the statute literally, according to the technical signification of its terms, it is plain, the present case would not come within any of its provisions. It is not technically an action of debt, or an action to recover a debt; but it is an action to recover a sum of money, technically damages, founded on the breach of a contract in writing for the delivery of specific property. Under the common law forms, and the Statute of Westminster 2, the form of action would be case ; and the period of limitation, under the Statute 21st Jac. 1, c. 16, would be six years ; the same as in actions of debt founded on any simple contract; that is, any contract not under seal; as bills of exchange, promissory-notes, and all merely verbal and written contracts without specialty. But if the contract had been sealed, the form of action would be covenant; that being the remedy for the recovery of damages for the breach of a covenant, or contract under seal ; and under the Law Amendment Act, 3 and 4 Will. 4, c. 42, s. 3, the period of limitation would be twenty -years. As to actions upon contracts, the distinction in the English statutes is between simple contracts and specialties.— Our statute recognizes no such distinction. All written contracts are placed upon the same footing in this respect, as they ought to be in all others. The only distinction which it makes, as to the time within which actions upon contracts shall be brought, is between parol or verbal, and written contracts. Upon the former, suit must be brought within two, upon the latter it may be brought at any time within four years next after the cause of action accrued. We have seen that the expression in the statute, “ actions of debt,” cannot receive a strict literal interpretation, without defeating the provision altogether: tor we have no actions which come strictly and technically within that denomination. It must, then, receive such a reasonable and liberal interpretation as will give it effect according to the spirit and intention of the statute. To do this, we must disregard the technical distinctions of forms and terms, and look to the substance and manifest object of the statute. That, obviously, was to prescribe a limitation of all actions for the recovery of money upon contracts in writing, without reference to any technical distinction of terms, which have no place in our system. We cannot -suppose that either the term “ actions,” or “ debt,” was used in a strictly technical common law sense; the term actions, with reference to common law forms, or debt in reference to the strict common law meaning of that term. We cannot give that construction to the term actions, for the obvious reason that we have not the common law forms of action : and though there would not be the same difficulty in giving a technical meaning to the term debt, there is no more reason for supposing that such a meaning was attached to it by the Legislature. The more reasonable construction, and that which best harmonizes with the general provisions and policy of the statute, we think, is, to consider the terms “ actions of debt, grounded on any contract in writing,” as including all suits brought to recover money for the breach of a contract in writing, without regard to the technical distinction between debt and damages. The present action was brought upon a contract in writing, to pay 'a sum certain in money, technically a debt, and an unliquidated sum for the breach of the contract to deliver specific property, technically damages. Both demands arise upon the breach of the same written contract; and it cannot have been intended in such a case, that one period of limitation should bar one part of the cause of action, and a different period another part, arising upon the same contract, merely because, in technical legal phrase, the one is called debt, and the other damages. The suit being for the recovery of money for the breach of a written contract, comes within the reason and intention of the provision prescribing the limitation of actions for money demands, arising upon written contracts ; which being four years, the Court did nor err in holding that the right of action was not barred by the statute.

As respects the sufficiency of the evidence, we are of opinion that it was sufficient to warrant the jury in finding that the failure to return the property to the plaintiff, and its loss, was caused by the wrongful acts of the defendant; amounting to an abuse and misuse of it; and the legal consequence is, that he is responsible to the plaintiff for its value. (Mills v. Ashe, supra ; Smith v. Chance, 7 Tex. R. 561 ; Mitchell v. Mims, 8 Id. 6.) The right of the plaintiff to recover the hire in this case, rests upon the same ground as his right to recover the value of the negro ; that is, that the loss to the plaintiff was occasioned by the wrongful acts of the defendant, for which he is legally responsible. The general rules respecting the apportionment of contracts were stated in the case of Meade v. Rutlege, (11 Tex. R. 45.) The measure of damages is, in general, that which will compensate the plaintiff, as nearly as may be, for the actual injury sustained by the breach of contract by the defendant. That rule is not violated by allowing the plaintiff to recover the hire in this case. The rule might be different in a case differently circumstanced from the present ; but it will suffice for the present, to say, that, upon the facts of this case, there was no error in holding that the plaintiff was entitled to recover both the value of the negro and the hire : since he was deprived of both by the wrongful acts of the defendant, and without fault on his part. We are of opinion, therefore, that there is no error in the judgment, and that it be affirmed.

Judgment affirmed.