Manning v. Sawyer, 8 N.C. 37, 1 Hawks 37 (1820)

June 1820 · Supreme Court of North Carolina

8 N.C. 37, 1 Hawks 37

Manning v. Sawyer.

From Chowan.

The Coui't will not entertain an appeal, but will' direct a certificate under the act of 1818, c. 2, s.7; unless the appellant bring up the appeal bond with the record, and file it in due time :

The appellant filed the record in due time, but omitted to file the appeal bond with it: Heidi that on a mere suggestion’and motion on behalf of the appellant, a certiorari will not be granted: but that on a proper case appealing by affidavits, a certiorari will be granted.

A declaration in assumpsit, that Defendant promised to pay the Plaintiff for a certain house what “A. B. and C. should say it -was -worth” is supported by giving in evidence a written agreement, that Defendant would pay what “ A. B. and C. should say.” ■

The Plaintiff obtained a verdict and judgment below, for a large sum of money, and the Defendant appealed to this Court. He brought up and duly filed, the transcript of the record; but omitted to file the appeal bond.

Gaston, for the appellee,

moved to dismiss the appeal, for want of the bond.

Hogg, on the other side,

opposed it, and moved, at the same time, for a certiorari to the Court below, to get up the bond. He argued that the Court ought to grant it, because a refusal would be so penal to the appellant. Appeals are beneficial, and ought to be" favored j and the Court will always presume that they .have been regularly taken, and, of course, a bond given. The appellant lias brought up the record, which shews that he has not intentionally abandoned his appeal; and he does not now ask ^ Court to go to trial without the bond being here, but, on the contrary, to have it brought up, so as to satisfy the Court that the appellee is secured in bis recovery. It is obviously the fault of the clerk in not giving the whole record to the appellant, who cannot be presumed to have sent up only a part of what he received.

Henderson, Judge, said that he thought the Court was indeed to presume that a bond was given, when the appeal was granted. But, admitting that to be so, the absence of the bond must be accounted for by the appellant, to whom the Law confides the record and his own bond, as part of it. As he has the custody of the bond, it is not too penal, but is quite just to dismiss, or rather, not to receive the appeal; otherwise an appeal would be always taken for delay. The certiorari ought not, therefore, to be granted, unless a proper case be made upon affidavit; but the ap-pellee is entitled to a certificate under the act of Assembly.

The rest of the Court concurred.

Some days afterwards, Hogg renewed his motion, and supported it by affidavits, that the appellant- had duly applied to the Clerk below for the record, and received the transcript which he filed; that he fully believed that he had done all that was required of him, and that he and the Clerk were both ignorant that it was his duty to bring up his own bond; that he had never intended to abandon his appeal, or delay the appellee. Therefore, the writ was granted; and was returned, together with the bond and whole record to a subsequent day of the same Term.

And by the record, as now filed, the case appeared to be this : the Plaintiff declared in .assumpsit on a special agreement, that, in consideration that he, the Plaintiff, agreed to sell to the Defendant certain buildings and houses described in the declaration, he, the Defendant, agreed to pay the Plaintiff therefor whatever sum of money any three disinterested men should say they were worth; that!. S. and two others, being disinterested and appointed by the parties, valued the buildings at $1750, whereof the Defendant had notice; that Plaintiff had always been ready, and offered, &c. but that the Defendant refused, &c. The plea was “ non assumpsit.”

Upon the trial, the Plaintiff produced in evidence a written agreement between him and the Defendant, whereby Sawyer “ agreed to give to Manning the sum that any “ three disinterested m.en shall say for the property where- “ on M. lives, taking into view all thecircumstances of the “ case, consisting of dwelling house, &c.5’ And they thereby appointed “ the said J. S. and the other two, and bound “ themselves, to abide by the decision of the said persons.” Manning had built those, houses on Sawyer’s ground •, and the referees fixed the value at gl"50, and gave them notice of it; and the Plaintiff offered to'comply, and demanded the money, but the Defendant refused to make payment or accept the houses. For the Defendant, it was objected, that the agreement produced did not support the declaration, but varied from it, that the declaration set forth a contract to pay what “ J. S. and the .others might say the “ houses were worth ,*” whereas the agreement itself was, that he would pay “ what they might say, taking all cir- “ cu instances into view7and, therefore, that it ought not to go to the Jury. But the Court over-ruled the objection, and suffered the evidence to be read ; and the Jury found a verdict for the Plaintiff according to his demand. The Defendant prayed for a new trial, which the Court refused, and gave judgment,* from which he appealed to this Court.

Hogg, for the appellant,

relied again upon the variance: what the arbitrators might say, and what they might say the houses were worth, arc two different filings : more especially in this case, where one person had built on another’s ground, and it was left to friends to determine, under all the circumstances of the case, how much the owner SQjj s|]0[ipj jjay to another, who had erected buildings upon his land, innocently, it may be, or by design, for aught we can see from the case: At all events, the contract, such as it was, ought to have been set out exactly, and then the Law, and not the Jury, would decide whether the Plaintiff could recover.

Gaston, for the appellee.

The contract, as shewn in evidence, and that stated in the declaration, are substantially the same. The appellant was to pay what three men would say — what ought they to say ? What ought and what would the law say ? That he should pay what the houses were worth. That must have been the meaning of the parties. It could not have been intended that the arbitrators should, without any rule, and from a mere arbitrary authority, fix a sum to be paid by the Defendant to the Plaintiff; and there could be no other rule than the value of the buildings.

As to the point of pleading — it is not necessary to set out a contract in its very words ; it is sufficient and proper to set it out according to its substance and legal effect.^* And a material word will be supplied, if necessary, as in King v. May.^† So the Court will look to the context, to determine whether the variance be in substance or not,^‡ and will make the words “ U. States” mean “ United States.”

* 1 Chitty’s Pl. 299-302. 1 Saund. 233, Note 2. 10 Mass. Rep. 230.

† Doug. 183.

‡ 5 Johns. Rep. 1.

Tayxor, Chief-Justice,

said, that the agreement between the parties leaves no doubt as to their intent in making the contract, and it may be well doubted whether the insertion of 1he word “worth” would have made it more clear. In the award of the persons chosen, the true import of the contract is declared, and the declaration truly pursues its meaning. If there be a variance between the declaration and the agreement, it is too literal and insignificant to affect the case, and there must be judgment for the appellee.

The other Judges did not deliver any opinions, but agreed that the Plaintiff was entitled tb judgment.