Opinion
June Term, 1828.
From Randolph.
1. Single magistrates have jurisdiction for balances due upon executed contracts, for which debt or indebitatus assumpsit will lie, but they cannot give damages for the breach of an executory contract.
2. Where the defendant covenanted to pay a certain price per hundred for carrying goods, and to deliver a certain quantity, but delivered less, it was held that a justice of the peace had no jurisdiction as to that part of the contract which had not been performed.
The plaintiff warranted the defendant for work and labor in carrying goods from Petersburg to Randolph County, and on the trial a letter from the defendant to the plaintiff was read, of which the following are the material parts:
Nash for the defendant.
Wilson contra.
"It is understood that I am to furnish you with 5,000 weight and pay you $1.50 per hundred, etc. All that remains (388) for me to say is on the subject of the time for you to be in Petersburg. Mr. H. and myself have set from the 1st of October to the 5th (1823) for our goods to be landed there, and I shall expect you there at that time. We allow five days for fear of some disappointment."
The plaintiff then proved that he, in pursuance of these instructions, went to Petersburg with two wagons, where he arrived on 3 October, 1823, and waited until the 7th, when the defendant's agent refused to pay his expenses or to give him more than 1,500 pounds to bring to Randolph, with which he left Petersburg, although he could have carried 6,000. A Payment of $36 was admitted by the plaintiff.
The counsel for the defendant objected that the case was not of a kind over which a single magistrate had jurisdiction, but his Honor, Judge Norwood, overruled the objection, and instructed the jury that the plaintiff was entitled to a verdict, which being returned accordingly, the defendant appealed.
This is a warrant brought to recover the price of wagoning merchandise from Petersburg, according to a contract contained in a letter from the defendant to the plaintiff, in which the defendant undertakes to furnish the plaintiff with 5,000 pounds at a stipulated price per hundred. The defendant proceeded to the place, together with another wagon, which he had hired, and after several days detention was furnished with only 1,500 pounds, being about a fourth of the amount the wagons could have brought with convenience. For the wagonage of the goods actually brought the defendant has overpaid the plaintiff, but as the latter has sustained damage, and been put to expense, by not being supplied with the quantity he had prepared to bring, he is manifestly entitled in justice to compensation for his loss. The only question (389) is, Can he recover it in this form, or must he resort to an action? An inspection of all the acts conferring jurisdiction on justices out of court shows that the Legislature designed only that they might take cognizance of such matters as were liquidated between the parties or might be reduced to certainty by some standard furnished by them, or one of familiar application. It is remarkable that in the first act of 1777, down to the act of 1794, the nature of the jurisdiction in regard to money contracts is described by the same words, "all debts and demands (of so many pounds and under), where the balance due on any specialty, contract, note, or agreement, or for goods, wares, or merchandise sold and delivered, or for work and labor done." All the acts contemplate that upon such debts and demands there must be a balance due, whether it arises from a specialty, contract, note, agreement, or the other enumerated causes of action. The evident meaning was to comprehend two classes of cases, such as the action of debt would have lain for before its disuse as to simple contracts; that is, for a sum of money due by certain and express agreement, where the amount is specific, and does not depend on any subsequent valuation to settle it; in which case the action of debt operates as a specific execution of the contract, whether the debt arise by specialty or a verbal agreement to pay a certain price for a certain parcel of goods. Secondly, that class of cases which could not be specifically performed, because the price of the goods, or the value of the labor, was not previously ascertained, but of which an estimate might be formed near enough to mark the demand as within the jurisdiction — those cases, in short, for which indebitatus assumpsit is brought to recover damages for the nonperformance of the contract. But there are cases of "specialty, contract, and agreement" by the violation of which a man may be injured to an amount perhaps less than the (390) jurisdiction of the justice, who is nevertheless without the power to afford him redress. If a man covenants to go to a certain place by such a day, or not to exercise a trade at a particular place, and is not at the place at the time appointed or carries on his trade at the restricted place, these are breaches of his covenant, and may perhaps be to the loss of the covenantee. So in the case of a simple contract or agreement: if a builder undertakes to build a house for A within a time limited, and fails to do it, A can recover no satisfaction before a magistrate for the injury sustained by such delay; nor can the covenantees in the cases first put. The reason is plain, for although there is a demand, there is no balance due, nor any certain rule or fixed standard by which alone the policy of our law will allow an individual to measure the injury sustained; it is a fit subject for the communication of many minds — in short, for the determination of a jury. A strong legislative exposition of these acts is furnished by the act of 1794, Rev., ch. 414, by which jurisdiction is first given to magistrates of contracts for specific articles. The value of all articles at the time they ought to have been delivered was of easy ascertainment; the creditor could assert beforehand the amount due him upon the contract, at least within a small sum. Yet it had been a question which for time immemorial was submitted to a jury; such is our habitual reverence for that institution, that though the summary jurisdiction is convenient to the country, the transfer of it was late and reluctant. What should be the proper estimate of damages in this case is a subject peculiarly fit for the consideration of a jury. The magistrate has allowed the amount of what would have been the carriage of 5,000 pounds, deducting the $36 paid by the defendant; whereas the labor and risk of returning with 1,500 pounds was less than with 5,000 pounds. On the other hand, it may be thought that the plaintiff is entitled to an allowance by way of demurrage for the time he was detained in Petersburg. This is mentioned to show the uncertainty of the rule by which (391) damages are to be estimated. The result of the whole is that in my opinion the demand on this warrant is not within a single magistrate's jurisdiction, and that the judgment should be reversed and a new trial granted.
PER CURIAM. Judgment reversed.
Approved: Mann v. Kendall, 47 N.C. 192; Webb v. Bowler, 50 N.C. 362.