Hedrick v. Wagoner, 53 N.C. 360, 8 Jones 360 (1861)

June 1861 · Supreme Court of North Carolina

53 N.C. 360, 8 Jones 360

CASPER HEDRICK v. HENRY WAGONER, Executor.

Where a parent put a slave into the possession of his child, with an intention to make it an advancement, but afterwards changed his mind and took it back, it was held that the law implied no obligation on the part of the parent to pay for keeping, feeding and clothing the slave.

Action of assumpsit, tried before Howard, J., at the last Spring Term of Davidson Superior Court.

Joseph Wagoner, the defendant’s testator, in the year 1839, placed in the possession of his daughter, then a widow, a certain negro woman slave. The daughter was afterwards married to the plaintiff, who took charge of the woman and kept her and her children, of which she had several, until the year 1858, in the mean time feeding and clothing them. In that year, testator went to plaintiff’s house, and complaining that plaintiff was about to run the slaves from the country, demanded, as the condition upon which he would let them remain, that plaintiff should give bond and security not to remove them ; which the latter declined doing, and so the bailment terminated. Hedrick said, he ought to have pay for his trouble ; to which Wagoner replied, he would give him $50 if that would satisfy him. This, the plaintiff refused. Wagoner then said, “pick out two men, and whatever they say, I will pay you,” but this was never done, and shortly afterwards, this suit was brought.

By the consent of the counsel on both sides, the question of damages was submitted to the jury, the Court reserving the question of plaintiff’s right to recover, with leave to set aside the verdict and enter a nonsuit, should the opinion of the Court be adverse to plaintiff’s cause of action. The jury found damages to the amount of $300.

Afterwards, the Court set aside the verdict and ordered a nonsuit, from which plaintiff appealed.

Kitt/rell, for the plaintiff.

Oorrell and Malean, for the defendant.

Manly, J.

The view taken of this case in the Court below, was clearly correct. It' is the ordinary case of a slave put into the possession of a child, and intended by the parent as an advancement, but with respect to which he changes his mind and tabes the slave away.

The law implies no obligation in such a case on the part of the parent to pay for keeping, clothing, feeding, and the like. The negroes were not kept upon any such expectation, much less upon any mutual understanding to that effect.

There was no legal or equitable obligation to allow them to remain under any circumstances, and the law will not raise an assumpsit to pay damages for doing what the party had a right to do, nor will it interpolate upon the transaction a liability, not contemplated by either party during its continuance.

The principle of the case falls within that of the University against McNair’s Executors, 2 Ire. Eq. 605.

The proposition on the part of defendant’s testator to pay $50, (which was rejected by the plaintiff) was in furtherance of a negotiation for peace, and does not, in any way, affect the rights of the parties, and of the same character is the proposition (not carried into execution) to submit it to men. The judgment of the Court below should be affirmed.

Per Curiam,

Judgment affirmed.