Brown v. Brooks, 52 N.C. 93, 7 Jones 93 (1859)

Dec. 1859 · Supreme Court of North Carolina

52 N.C. 93, 7 Jones 93

GASTON E. BROWN v. MARION BROOKS AND ALBERT GEAN.

Receipts for money, which contain no evidence of a contract between the l parties, are liable to be explained or altered by oral testimony,- but aliler where they are relied on as evidence of a contract.

Where the vendor of a slave, executed a paper-writing, acknowledging the receipt of a certain sum, expressed to be in part payment of the price, and binding himself, under a penalty, to deliver the slave (then a runaway) by a certain day; it was Held that this was no evidence of an executed contract, by which the property vested in the vendee.

This was an action of replevin for a slave, tried before Caldwell, J., at the last Spring Term of Chatham Superior Court.

'The plaintiff, in making his title to the slave, gave in evidence a paper-writing, delivered by the defendant, Brooks, to the bargainors of the plaintiff, in the following words : “ Received from Jollie, Hanks & Holt three hundred dollars, in part payment for a negro man, by the name of Ned, which negro has runaway, and I hereby bind myself to deliver said negro by September Court to the said Jollie, Hanks and Holt, or forfeit to the said firm the sum of fifty dollars.” Test, "VV. Hanks. Signed by Marion Brooks.

The defendant insisted that the said paper-writing was a mere receipt, and that it was competent for them to show, that it did not contain the real contract entered into between the parties. 'For that purpose they offered to prove declarations made by Jollie, one of the parties thereto, snbsecpientl}to its execution, that said paper-writing was not intended to convey the title to Ned, but was merely an executory contract of sale, defeasible by the non-delivery of said slave, and the fulfillment of which was secured by a penalty of fifty dollars ; that said Brooks had not kept his contract and therefore, he, Jollie, did not claim Ned, who, at the time of the ■declaration, was still runaway, but intended to sue Brooks for the money that had been paid upon the price, as well as for the fifty dollars forfeiture.

The Court was of opinion that the paper-writing was more than a more receipt, that it contained a contract to convey the title in said slave, and rejected the evidence offered by the defendants. The defendants excepted, and submitted to a verdict. Rule for a venire de novo discharged, and appeal by the defendants.

Phillips, for the plaintiff.

PLaughton, for the defendants.

-Manly; J'.

n Simple receipts for money, which contain no evidence of á.'-éóntract between the parties, are liable to be explained of altered by oral testimony, but it is not so with re>gard to the written evidence of a contract, whether executed or .executory.

Therefore, in the Superior Court, the Judge properly rejected the testimony offered to explain the legal effect of the instrument, under date of the 15th of August, 1855. We are of opinion, however, that the sense of that paper was misinterpreted by his Honor, and that it does not, as was supposed, convey a title to the slave. This is a question of law, which must be decided upon a consideration of the language of the instrument alone. By a reference to that, it will be perceived that the three hundred dollars was received, not in full, but in part payment for the slave, and it then sets out that he is runaway, and binds the signer, under a penalty, to deliver him by a certain time. There seems to have been something left for both parties to do, the one to make complete payment, (or a satisfactory substitute) the other to make delivery of the slave. Jollie, Hanks and Holt did not intend, and, as we suppose, were not liable to pay until the slave was delivered, and there was no obligation on the part of Brooks to deliver, until the other party had announced his readiness to make satisfaction for the price. There could not have been, therefore, that transmutation of property necessary to support the action. Eor, upon such transmutation “ eoinsiantl” correlative rights spring up; on the one side, property in the thing, on the other, property in the price ; rights, which we have shown tiie parties, to this paper, 'could not have contemplated.

We conclude, therefore, that the instrument par se, is evidence only of a contract, executory in its nature, and not executed, and that upon it alone, proprio vigore, no right of property in the slave can be legally asserted.

Per Cukiam,

Judgment reversed and a venire de novo.