Mosby v. Hunter, 31 N.C. 119, 9 Ired. 119 (1848)

Dec. 1848 · Supreme Court of North Carolina

31 N.C. 119, 9 Ired. 119

RICHARD H. MOSBY vs. CHARLES G. HUNTER.

A. declared against B. for the breach of an agreement in writing signed by B. in the following words, “R. H. Mosby has promised to procure for my mother a pension from the Government of the U. S. supposed to be due to her as the widow of Lieut. Charles Gerard, and in the event of his doing so, I promise and oblige myself to give the said R. B. Mosby one half of the money due her on account of the said pension. Given under my hand this 3rd day of December, 1838. Charles G. Hunter.” Held, that this agreement referred to a pension to which the widow was then entitled or supposed to be entitled, and not to a pension to which she became entitled under an Act of Congress subsequently passed. Held further, that although the sales of pensions are by law prohibited, yet the Court could not infer from this agreement, though a jury might, that the agreement was made by the son, as the agent of his mother, it did not transfer any title to any portion of the pension, and therefore was not, on that aceount, in itself invalid.

Held, also, that upon a count for work and labor done, A. could not recover from B., because his services did not enure to the benefit of B., and therefore the law would not imply a promise.

Appeal from the Superior Court of Law of Warren County, at the Fall Term, 1848, his Honor Judge Dtcs presiding.

This was a special verdict, subject to fhe opinion of the Court, upon the following facts. The plaintiff declared in assumpsit in two counts. In the first count, upon a written agreement, signed by the defendant in the following words, “R. II. Mosby has promised to procure for my mother a pension from the Government of the U. S. supposed to be duo her as the widow of Lieut. Charles Gerard, and in the event of his doing so, I promise and oblige myself to give the said R. H Mosby one half of the money due her on account of the said pension.

•‘Given under my hand, this 3rd day of December, 1838.

‘■CHAS G. HUNTER ”

The second count was the common one for work and labor done.

The plaintiff thereupon proved, that after the said agreement of the defendant and in consideration thereof, the plaintiff undertook and agreed to act us the agent of Mrs. Hunter, the mother of the defendant, in preparing the proper documents and procuring the proofs required for asserting the said Mrs. Hunter’s claim to a pension of $320 per year for five years, to which she was or might be entitled under the Acts of Congress, as the widow of Charles Gerardi who was a Lieutenant in the second North Carolina Regiment in the Army of the U. S., to take rank as such from 1st June, 1778, under and by virtue of a commission dated 6th of March, 1779. Accordingly on the 3rd day of December, 1838, the plaintiff wrote or caused to be written the necessary declaration of the said Elizabeth Hunter, and compiled evidence in support of her claim to a pension, under the Act of Congress of the 7th July, 1838, entitled “an Act granting half pay and pensions to certain widows,” which said declaration and the proofs aforesaid, the plaintiff presented and filed at the proper department of the Government, at Washington City, and prosecuted the said claim before the said department. The said claim remained some time in the said department, undetermined, and on the 24th August, 1842, the said application was called up for a decision by the Commissioner of Pensions, at the instance of the Hon. R. M. Saunders, a member of Congress, and determined in favor of the said Elizabeth Hunter on the 29th August, 1S42, It was proved that the said determination was made upon the proofs compiled and filed by the plaintiff, and without any other additional proofs or documents, excepting that the Hon. R. M. Saunders testified to the credit and good character of a witness, whose affidavit had been heretofore filed by the plaintiff, in support of the said Elizabeth Hunter’s claim, and it was further proved, that the Hon. R. M. Saunders called up said claim for a decision and procured the same by the solicitation of the plaintiff, and at his request, the said plaintiff acting or professing to act as the agent of Mrs. Hunter as aforesaid. It was further proved, that, pending the application aforesaid before the Department for the allowance of pensions, and before a final determination thereon, to-wit, on the 23rd Aug. 1842, Congress had passed an Act, that the marriage of the widow, after the death of her husband, for whose services she claims a pension under the Act of 7th July, 1S3S, shall be no bar to the claim of such widow to the benefit of that Act, she being a widow at the time she makes application for a pension. It appears from the proofs and documents filed by the plaintiff in Mrs. Hunter’s case, that she was married to Charles Gerard, on the 2Sth ol October, 17S9, who died on the 6th of October 1797 ; that she was married to Henry Hunter on the 25d day June, 1805, who died on 13th day of August, 1823; that she was a widow at the passage of the Act of 7th July, 1838, and also at the date when she made her application for a pension. It was further proved that the said Mrs. Hunter obtained a pension certificate on the 20th of August 1842, as aforesaid ; and that the. same has been paid, to-wit: $320 per year for five years, making $1600, but the same was neither allowed nor paid until after the Act of 23rd August, 1S42. The defendant, upon demand afterwards, refused to pay the plaintiff the one half of the said sum, so recovered by Mrs. Hunter, his mother, and in like manner refused to pay the plaintiff any thing for his agency and services in the premises and afterwards this action was brought, &c.

Upon the trial, the defendant contended, that the plaintiff had no right to a verdict on the 2nd count of his declaration, and the Court being of the opinion with the defendant, directed the jury to find for the defendant on the said count, because the plaintiff should have brought his suit against Mrs. Hunter for the matters in said count, and cannot maintain an action against the defendant, except upon his special agreement.

The defendant further insisted, that as to the first count in the plaintiff’s declaration, he cannot recover. 1st. Because the said agreement with the plaintiff, although made by the defendant, was in contravention of the Act of Congress and in violation of the policy of the Government, and the Acts of Congress, which declare all assignments or sales of pensions void, and that the said agreement, although made with this defendant, and in consideration of the plaintiff’s undertaking to prosecute the said claim and not with the pensioner herself, is upon its face an evasion of the Act of Congress and the policy of the Government. 2nd. Because the said agreement, although m ade with and by the said defendant, did not stipulate for the payment of any sum of money tq the plaintiff, except it might be for procuring in her behalf a pension due to the defendant’s mother, at the time of the said agreement, to-wit: 3rd Dec. 1838, and that the pension, in fact procured for his said mother, was not due to her at the time aforesaid by force' of any Act existing at that time, but that the pension, procured for her, became due to her by force of the Act passed 23rd August, 1842: and that, according to the true interpretation of the laws of the United States, the said pension became due to her, after the said agreement, and, therefore, the defendant, according to the true interpretation of his said agreement, in writing, did not become bound to pay the plaintiff.

It was agreed, that the said verdict might be taken, subject to the opinion of the Court upon the points reserved ; and that, if the Court should be of the opinion, that the law was in favor of the d efendant, the verdict was to be set aside and a non-suit entered. If otherwise, judgment to be entered for the plaintiff, for the amount of the said verdict and costs. And, if upon consideration, the Court should be with the defendant, upon the points reserved in the first count, the plaintiff has leave to move for a new trial for misdirection in respect to the second count.

Upon consideration of all the said matters, the Court» pro forma, adjudged the points reserved to be all in favor of the plaintiff, and judgment accordingly is entered in favor of the plaintiff for $1036, with interest on $806 from the 16 th day of October, 1848, until paid, and costs.

From this judgment the defendant appealed to the Supreme Court.

W. II. Haywood, for the plaintiff.

Whitaker, for the defendant.

Ruffin, C. J,

The declaration has two counts: the one, on the special agreement; and the other, the com* mon one for work and labor. The verdict was given for the plaintiff on the first count, subject to the opinion of the Court on points reserved.

On the first of those points this Court concurs with his Honor. There are several Acts of Congress which avoid a sale, assignment, or transfer of a pension, or any part of it, under all circumstances, and to all intents ; and, of course, if the Court could find, as a matter of law, that this was a contract of that character, it would be held to be void, as contravening the policy and enactment of the Statutes. To constitute a sale or assignment of a right, it is essential that the contract for that purpose should be that of the person to whom the right belongs ; either made by the owner in proper'person, or by some other on behalf or with the knowledge and concurrence of the owner. The mere unauthorised bargain of a stranger can have no effect whatever in transferring the pension. It cannot be denied, that, considering the relation of a mother and son, and the provisions of the Acts of Congress touching transfers of pensions, and the terms of this agreement, it seems highly probable, the treaty was made with the mother, or with the son on her behalf and with her privity, and that it was put purposely inlo this form, as a shift and device to evade and defraud the law by keeping-out of sight the real intent and giving the transaction the appearance of a contract with the son and in his name, while there was in reality an undertaking between the plaintiff and the mother and son, that the whole was done on the mother’s account, and that she would fulfil her son’s engagement. If such was the truth of the case, there is no doubt, that it would come within the statutes. But it is competent for a jury only to draw inferences of the pensioner’s privity from those circumstances. They might ask, if the object was not to evade the law, why the plaintiff did not bargain with the mother directly, instead of the son, for the payment to the plaintiff of one half of the pension itself; and, nothing appearing to the contrary, they might, with much reason, infer, as a fact, that such was the object, and that the mother was cognizant of the contract and was to be bound by it. But the Court cannot, as a matter of law, infer the same thing. For, it is possible, that the defendant might have treated without his mother’s privity, and from filial regard might have been moved to pay out of his own pocket one half as much as the mother might gain ; and, for aught the Court can see in the instrument, such might be the fact in this instance. If so, it could not be deemed the assignment of the mother ; and, if it be not hers, it is not an assignment or transfer at all, and, so, not within the Acts of Congress.

Upon the second point reserved, the Court is of opinion from the terms and scope of the contract, that it referred exclusively to a right to a pension then subsisting or supposed to subsist ; and that, as there was no right at the time, the bargain and the subject of it failed together. The defendant had no notion of employing the plaintiff, nor had the plaintiff any intention of engaging, to solicit from Congress the grant of a pension to this lady. But the purpose was to establish her right, as the widow of an officer of the revolution, to one already granted, as they understood. The language is, that the plaintiff ‘■promised to procure for the defendant’s mother a pension supposed to be due her as &c., and in the event of his doing so,” the defendant promised to pay him one half the pension. This language agrees with what might have been expected from the nature of the subject. It is not uncommon — though not at such prices, it is to be hoped —to employ persons to discover and prepare the requisite proofs to entitle one to a pension under a law already passed. But it is, we believe, quite unusual, if not unknown, to appoint one as a Solicitor to Congress to procure the passing of a law granting pensions. Indeed, it is not pretended, that the plaintiff performed any such service as that; The claim is, that under evidence prepared to establish, as was supposed, an existing right to a pension, the lady was decided to be entitled to a pension granted four years afterwards. Such a case was not at all in the view of the parties. They were not treating for the division of the bounty of the Country, which might never be granted and was altogether uncertain in amount; but for that of a known amount. Both the words of the agreement and the circumstances repel the plaintiff’s claim.

As the plaintiff’s services did not enure to the benefit of the defendant, he is liable only as far as he expressly agreed. In such a case the law cannot imply a promise. There was, therefore, no error in directing the jury to find for the defendant on the second count.

But, as there was an error in the finding on the first count, the judgment must be reversed ; and, under the agreement in the record, judgment must be entered for the defendant as upon a non-suit.

■ Per Curiam. Judgment accordingly.