Opinion
(June Term, 1861.)
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.
ASSUMPSIT tried before Howard, J., at last Spring Term of DAVIDSON.
Kittrell for plaintiff.
Gorrell and McLean for defendant.
Joseph Wagoner, the defendant's testator, in 1839, placed in the (361) 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 meantime feeding and clothing them. In that year the 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.
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 takes 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 (362) 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 University v. McNair, 37 N.C. 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 should be
PER CURIAM. Affirmed.
Cited: Everitt v. Walker, 109 N.C. 132.