Niblett v. Herring, 49 N.C. 262, 4 Jones 262 (1857)

June 1857 · Supreme Court of North Carolina

49 N.C. 262, 4 Jones 262

ROBERT G. NIBLETT v. JAMES HERRING.

Where there is an entire executory contract, and the plaintiff has performed a part of it, and without legal excuse, and against the consent of the defendant, refused to perform the rest, he cannot recover any thing for the part performed.

AotxoN of Assumsit, tried before his Honor, Judge Ellis, at the Spring Term, 1851, of Bertie Superior Court.

The suit was begun by a warrant before a justice of the peace, and brought up by appeal. The plaintiff declared, in several counts, for the services of a boy about fifteen years old; whom he had hired to the defendant for the year 1856, at the price of fifty dollars. The proof was that the b oy served the defendant about seven months, and then left his employment. There was evidence tending to show that the boy was taken away from the defendant by the plaintiff, against the will of the former.

The Court instructed the jury, that if the plaintiff took the boy away against the wishes of the defendant, that he was not entitled to recover any thing. Plaintiff excepted.

Yerdict and judgment for tbe defendant, and appeal to this Court.

Heath, for plaintiff.

Winston, Jr., for defendant.

Nash, C. J.

The charge of his Honor is in strict conformity with repeated decisions of this Court, of the Courts of England, and of our sister States, where the question has been canvassed. The principle is, that where there is an entire ex-ecutory contract, and the plaintiff has performed a part of it, and then wilfully refused, without legal excuse, and against the defendant’s consent, to perform the rest, he can recover nothing, either on the special or general assumpsit. 2nd vol. Smith’s Leading cases 13, in' the note: Upon the principle that where the contract is special, an action for its breach must, in general, be brought on the special contract. "While it is open and unperformed, no action can be sustained for work and labor done. Cutter v. Powell, 6 Term Rep. 320 ; Jennings v. Camp, 13 John. Rep. 94.

The cases in this Court are Fesperman v. Parker, 10 Ire. Rep. 474 ; Winstead v. Reid, Busb. Rep. 76, and White v. Brown, 2 Jones’ Rep. 403. The last two cases in particular, cover the whole ground. The former was brought by a carpenter against his employer for work and labor done upon a house at a stipulated price. He commenced the work, and, when it was half finished, abandoned it, without the consent of the defendant, the employer. The action was upon the common count for work and labor "done. The decision was, that he could not recover. The- latter was more analogous to this. The defendants had a. contract upon the rail road, and hired from the plaintiff, for the time they should be engaged in the work, several slaves, at a stipulated price per month. Before the work was finished, the slaves were taken home by the plaintiff, without the consent of the defendant; and the action was brought on the common count to recover for the time they had worked. Judgment was rendered against tbe plaintiff. In onr case, the contract is a special one for the hire of a boy, for one year, at an agreed price. Before the end of the year, the plaintiff took the boy home, as was alleged, against the wishes of the defendant. This point being controverted, it was left to the jury to decide, his Honor instructing them, that if the plaintiff did take away the boy, he could not recover. To this charge there can be no legal exception.

PeR CueiaM. Judgment affirmed.