Opinion
(June Term, 1843.)
1. Where A by a writing, not under seal, agreed that "he was held and firmly bound to B in the sum of two hundred dollars," conditioned to be void provided the said A kept and maintained a certain old negro woman belonging to B free from any expense to B and A afterwards failed to perform his agreement; Held that the $200 was not to be considered as an agreed penalty or stipulated damages — that the agreement was an indemnity to B against any loss or expense to be incurred in maintaining the said slave during her life — that the obligation was a continuing one on A — and that B might at any time sue A for neglecting to provide for the said negro, and would not be barred by the Statute of Limitations from recovering any damages he might have sustained within three years before the commencement of the suit.
2. Held, further, that B was not estopped, by a bill of sale under seal from himself to A for a negro Daniel, in which he acknowledged to have received the price of Daniel, from showing that the price of Daniel was the consideration of the agreement declared on.
APPEAL from Bailey, J., Spring Term, 1843, of CRAVEN.
This was an action of assumpsit in which the plaintiff declared upon the common counts and also upon the following special agreement:
Be it known that I, Isaac Wingate, am held and firmly bound unto Spicer Lane in the sum of two hundred dollars, to be levied out of my goods and chattels, lands and tenements.
The condition of the above obligation is such that I, the said Isaac Wingate, for certain consideration to me in hand paid by Spicer Lane, which I do by these presents acknowledge, have agreed to take from the said Lane a certain old negro woman named Rhoda, and her to keep and maintain, so as to exonerate him, the said Lane, from any charge (327) or expense on her account; provided, therefore, that I, the said Wingate, doth fully perform, agreeable to this agreement, the above obligation to be null and void — otherwise to remain in full force and virtue. ISAAC WINGATE.
12 December, 1832.
It appeared in evidence that, upon a contract made between the plaintiff and defendant, the plaintiff had agreed to sell certain negroes to the defendant, and the defendant was desirous of purchasing also a negro boy named Daniel, and that the plaintiff declined selling him, alleging that he wanted Daniel to wait upon an old negro woman in his possession named Rhoda, who was upwards of one hundred years of age, to which the defendant replied, that if the plaintiff would let him have Daniel he would support old Rhoda for life; that thereupon the plaintiff agreed with the defendant to let him have Daniel, in consideration that he, the defendant, would support old Rhoda during her life; the parties valued Daniel at two hundred dollars, and the defendant executed the agreement as above recited, the boy Daniel having been conveyed to the defendant by the plaintiff, as the consideration of the said agreement. This evidence was objected to by the defendant, but admitted by the Court, to show what was the true consideration of the written agreement. It further appeared in evidence that old Rhoda went into the possession of the defendant directly after the execution of the said agreement, under the same, and remained there for about four weeks, after which time she returned to the house of the plaintiff, where she has remained ever since up to this time, and been supported by him; and that within a month or two before the issuing of the writ in this case, the defendant was heard to declare that the plaintiff wanted him to take old Rhoda and support her, or pay him the two hundred dollars mentioned in the agreement, but, before he would do either, he would get clear of everything he had. It further appeared that it was worth twenty-five dollars a year to support Rhoda. The defendant then introduced in evidence (328) a bill of sale under seal from the plaintiff to the defendant, for the boy Daniel and other negroes, dated on the same day with the agreement above recited, in which the plaintiff acknowledges that he has received five hundred and fifty dollars in full for the said negroes; and the defendant insisted that, as the agreement declared upon was founded on the consideration of the sale of Daniel as aforesaid, the plaintiff was estopped by the said deed to recover under the said agreement; and, moreover, that his right of action in this case was barred by the statute of limitations.
Upon the question of the statute of limitations, the Court intimated to the plaintiff's counsel that, there being no seal affixed to the signature of the defendant in the agreement declared on, the plaintiff was barred of his recovery by the statute; but, by consent of the parties, this point was reserved, and the case was submitted to the jury upon the facts before stated, and, under the instruction of the Court, they found a verdict for the plaintiff, assessing his damages at seventy-five dollars. Upon the question reserved, after argument of counsel, the Court was of opinion that the statute of limitations was a bar to the recovery of the plaintiff, and therefore the verdict was set aside and a nonsuit entered, from which the plaintiff appealed.
J. W. Bryan for the plaintiff.
J. H. Bryan for the defendant. (330)
The verdict was rendered for the value of the maintenance of the slave for three years immediately preceding the commencement of the suit, but subject to the point reserved, whether the action was barred by the statute of limitations. Upon that the Court was of opinion for the defendant, and the verdict was set aside and a nonsuit entered. As it seems to this Court, that opinion was erroneous.
It appears that the plaintiff owned a superannuated slave, whom he was bound in morals and in law to maintain, and that he contracted with the defendant to take, keep and maintain her, so as to exonerate the plaintiff from that charge. As the question is upon the statute of limitations only, it is to be assumed that the proper evidence was given in other respects, as, for example, that the defendant would not provide for the negro, but threw her back on the plaintiff's hands. Upon such a case, we think the recovery right as far back as it goes. The statute runs only from the time an action could have been brought for the sums now recovered, and not from the making of the contract, nor even from a prior breach, if upon such breach a distinct sum would have been recovered and not the sums now in question. The only way in which this action can be barred, is by holding that the contract is strictly for the payment of the sum specified, namely, $200, in case the defendant failed to take or keep the slave; and that whenever he might thus fail, he would be liable for that sum, neither more nor less, as an agreed penalty. But we think that is not the proper light in which this transaction is to be viewed. If the agreement were under seal, it might, (331) perhaps, be objected that it was not an affirmative covenant to do the acts therein mentioned to be done on the part of the defendant, but strictly an obligation with collateral conditions. But, it may be mentioned, even in that case, under the statute, the obligee would substantially have his action from time to time as he sustained damages. But here the agreement, though not oral, is in parol, and the subject of the more liberal action of assumpsit, in which it is to be enforced according to the real meaning of the parties, as gathered from the whole instrument, without so much regard to the form, which the stipulations assumed. We think the plain import of the agreement is that the defendant will properly maintain this aged woman during her life, and that it is in truth an indemnity to the plaintiff against any loss or expense to be incurred in maintaining her during that period. We need not now say whether the $200 be not the extent of the indemnity, as the verdict is only for $75. But we are clearly of opinion that upon a breach by the defendant by merely not providing for the slave, say for a month or year, whereby the plaintiff was obliged to maintain her, the plaintiff could not recover the whole sum of $200, as it is obviously a penalty merely; and it cannot be supposed the parties contracted for it, without regard to the real injury arising out of the defendant's breach of contract. Suppose the defendant to have maintained the woman five years, and then turned her over on the plaintiff, who kept her a week, when she died; in that case the defendant would have reason for contending that he was not to pay the penalty, but only the value of the maintenance provided by the plaintiff. So, on the other hand, the plaintiff, upon a breach occurring, was entitled to recover only such damages as had arisen when he brought this action. And as the obligation of the defendant is a continuing one during the life of the slave, the plaintiff might waive a previous breach, without losing the benefit of the contract altogether. Here he sued for maintaining the slave from the time she left the defendants; and, as to that portion of the time, which (332) was more than three years before suit, the statute was a bar, but, for what fell within that period it was not a bar.
Being of opinion for the plaintiff on the point reserved, it becomes necessary that the Court should also advert to the objections, taken at the trial on the part of the defendant. Upon both of them we think the decision right.
The contract was not under seal, nor any consideration expressed on its face. It was, therefore, necessary that the true consideration should be alleged in the declaration and proved.
Robbins v. Love, 10 N.C. 82, shows that no estoppel arose out of the plaintiff's deed for the negroes. This action is not brought for the price of Daniel, as such, but for damages arising on a contract into which the defendant entered in consideration of the conveyance of that slave.
The nonsuit must be set aside and judgment for the plaintiff upon the verdict.
PER CURIAM. Reversed.
Cited: Mendenhall v. Parish, 53 N.C. 107; Long v. Freeman, 114 N.C. 570; Ivey v. Cotton Mills, 143 N.C. 194.
(333)