Odom v. Bryan, 53 N.C. 211, 8 Jones 211 (1860)

Dec. 1860 · Supreme Court of North Carolina

53 N.C. 211, 8 Jones 211

JEREMIAH ODOM v. WILLIAM BRYAN.

Where a slave was hired, by parol, for a sum certain, and before -the expiration of the term, the owner tools the slave out o'f the hirer’s possession against his will, and the hirer brought an action of trover against the owner,-and recovered and received the value of the slave’s services for the uteexpired part of the term, it was held in an action, brought by the ©wner against the hirer, to recover the price stipulated, that the hirer, having got the full benefit of •the contract, could not treat it as rescinded, and thereby avoid his obligation under it.

This was an action of assumpsit, tried before Heath, J., at Pall Term, I860, of Edgecombe Superior Court, and was brought to recover for the hire of a certain slave, Dave, from November 5th, 1857, to January 1st, 1859.

The defendant, as plaintiff alledged, was to pay for such, hire, the sum of $100, on January 1st, 1858, and $187,50, on January 1st, 1859. The plaintiff showed in evidence that he was the general owner of slave Dave, prior to the alleged hiring, and afterwards, np to the bringing of this suit, and introduced evidence, which, if believed, tended to show the hiring of said slave, Dave, by the plaintiff to the defendant on the terms alledged, and for the time aforesaid, and that he went immediately into the defendant’s possession.

The defendant then introduced evidence, which, if believed, tended to show that said slave, Dave, went back into plaintiff’s possession, at old Christmas, next after the hiring, and so remained in his possession to the bringing of this suit; and further introduced evidence, which tended to show that there were some writings to be drawn about the hiring of Dave, and that plaintiff took possession of him, because, as he alleged, the terms of hiring were not complied with, and that on defendant’s demand of Dave, plaintiff refused to deliver him, unless he would give him a forthcoming bond, which defendant agreed to do ; but plaintiff did not deliver said slave.

The plaintiff then offered to show a recovery of damages by the defendant, of the plaintiff, in an action of trover for the conversion of said Dave, for the time between the period or time of old Christmas and the 1st day of January, 1859, and that the plaintiff had paid the recovery, prior to bringing this suit; the defendant objected. The evidence was admitted. Defendant excepted.

The plaintiff then showed in evidence, such recovery of him, by the defendant, and a payment thereof, prior to bringing the present action. The recovery was for the sum of $185,00.

The Judge charged, that if the evidence, on the part of the plaintiff, was believed, though they might believe the evidence on the part of the defendant, the plaintiff was entitled to their verdict for the hire of Dave, provided the defendant had affirmed the original contract of hiring, as an executed contract, by bringing an action of trover for the recovery of damages for the conversion of Dave for the time aforesaid, and by a recovery therefor, and the defendant had paid the same; otherwise the verdict must be for the defendant. And that if they found for the plaintiff, they might give him interest on the hire.

There was a verdict for the plaintiff. Judgment. Appeal by defendant.

Dortch and Moore, for the plaintiff.

■J. L. Bridgers and Gonigland, for the defendant.

Battle, J.

If a slave be hired for a year, or any other certain time, for a stipulated price, secured by a bond, the contract will be one executed by both parties, and the owner may recover the full amount of the bond, though he take back the slave before the end of the year, against the will of the hirer, the latter being entitled to sue for and recover damages against the owner for his breach of the contract. Hurdle v. Richardson, 7 Jones’ Rep. 16. The hirer might also sustain an action of trover for the taking and conversion of the slave, for the unexpired term of the hiring, and thus recover the value of the slave for such term. But in a case of hiring for a certain time, at an agreed price, not secured by a bond or note, the eontraet is a continuing executory one, and the owner who shall take away his slave against the hirer’s consent, cannot recover, either upon the special contract or on a quantum meruit for the time during which the slave was in the hirer’s service ; White v. Brown, 2 Jones, 403; Niblet v. Herring, 4 Jones, 262.

In the case now under consideration, the contract of hire was like those in the cases last mentioned, of an executory character, and upon the plaintiff’s retaining his slave from the defendant, without his consent, the latter might have treated the contract as broken, and put an end to by the plaintiff, and in consequence thereof, might have refused to pay any thing for the time the slave was in his service. He declined to take that course, but on the contrary, lie proceeded to act as if the contract were an executed one, by bringing an action of trover, in which he recovered from the owner, as damages, the value of the slave for the time unexpired of the term of the hiring: The amount of this recovery was afterwards, but before the bringing of this suit, paid by the plaintiff to the defendant. Supposing it doubtful whether the recovery was a proper one, the defendant thereby got the full benefit of the contract for the hire of the slave, and be cannot be heard to say that he got it under an erroneous judgment of a court which had jurisdiction of the subject. Having thus obtained the full benefit of the contract of hiring, on his part, he cannot repudiate his obligation under it. He must be considered as if he had bad the services of the slave, during-the whole period for which he had hired him, and of course he must pay for him, according to his contract. The verdict and judgment against him, was for the amount of, the agreed price, with interest thereon, and for that, the judgment must be affirmed.

Per Curiam,

J udgmeat affirmed.