Wynne v. Latham, 51 N.C. 329, 6 Jones 329 (1859)

June 1859 · Supreme Court of North Carolina

51 N.C. 329, 6 Jones 329

JOSEPH W. WYNNE, by his next friend, v. CHARLES LATHAM.

Indebitatus assumpsit will not lie for the hire of slaves, where it is clear, from the facts, that the defendant derived his possession and title from another person than the plaintiff, under whom he claimed the slaves adversely to the plaintiff and all the world.

The case of Lindsay v. McChdloch, (ante 320,) cited and approved.

Actioít of assumpsit, tried before Saundees, J., at the last Term of Washington Superior Court.

Samuel Simmons was the guardian of the plaintiff, an infant, and, on 1st of January, 1856, he offered a number of slaves for hire for the year 1856, to the highest bidder, the hirer to give bond and sureties for the hire. Simmons bid off two of the slaves and took thorn into his service, and on 21st of February, he conveyed them for the residue of the year, and all his other property, by a general deed of assignment to the defendants, upon trust, for tire satisfaction of his creditors, and the defendants took the slaves into their possession and worked them for the purposes of the trust, to the end of the year 1856.

In July, 1856, Simmons was removed from his guardianship, and the gentleman, who instituted this suit, as the next friend of the plaintiff, was appointed in his stead. Before the action was brought he gave notice to the defendants, that he should hold them responsible for the hire from the date of tiie deed of trust, to the end of the year, and upon their refusing to pay, the writ was sued out on 20th of May, 1857. The declaration was upon an indebitatus assumpsit for the hires, for the period mentioned, and upon non-assumpsit pleaded, the foregoing facts were agreed on, and a verdict taken for the plaintiff for $303, subject to be set aside and a nonsuit entered, if,' in the opinion of the Court, the action would not lie. The Court ordered a nonsuit, and the plaintiff appealed.

E. W. Jones, for the plaintiff.

Garrett, Hines and II. A. Gilliam,, for the defendants.

Ruffes, J.

The judgment must be affirmed. "Without enquiring whether Simmons, as hirer, or guardian, could, or could not convey the slaves, so as to vest the right in his alienee for the residue of the year, and upon the hypothesis that ho could not, still the Court is of opinion that the plaintiff cannot maintain assumpsit against the defendants for the hire during that period. That action will only lie on a contract, express or implied, and the contract here, is supposed to be one of the latter kind. But the law cannot imply a contract between these parties, when it is clear, from the facts stated, that the defendants derived their possession and title from another person, under whom they claimed the slaves adversely to the plaintiff and all the world. The point is the the same as that decided in Lindsay v. McCulloch, at this term (ante 326); and supposing the plaintiff might have maintained trover or detinue, yet, he cannot maintain debt or as--sumpsit.

Pins CüRxaíe, Judgment affirmed.