44 N.C. 99 | N.C. | 1852
About the beginning of the year 1850, the defendant, who resided in Rutherford County, agreed to hire to the plaintiff, who lived in Macon County, four Negro slaves to work in the plaintiff's gold mines — the slaves to be taken 1 February following, and kept the remainder (100) of the year; for which the plaintiff agreed to pay, monthly, $8 per month for each slave. And to secure the payment thereof, and for the safe keeping and return of the slaves, the plaintiff was to give bond with good and sufficient sureties, residing in the county of Rutherford. H. Abrams, a brother of the plaintiff, testified that on or about 1 February, 1850, he, as agent of the plaintiff, went to the defendant for the purpose of getting the Negroes and giving the necessary security, and that the defendant refused to let him have them, alleging that he intended to work them in the gold mine himself; and, therefore, the witness left him, without tendering him any bond. The *107 plaintiff then produced a letter from the defendant, written the 27th of the same month, in which he stated he had declined working his hands in the mines, and that the plaintiff might have them, on complying with the terms agreed upon between them. The witness, H. Abrams, then testified that he went again as his brother's agent, in company with one Hinson, to the house of defendant, to get the slaves and give the bond. That he and Hinson, who both resided in Rutherford, offered to be sureties for the plaintiff, and the defendant said they were good; and that Hinson was about to write the bond, when the defendant said they should not have the Negroes, unless they gave a bond according to a form which he read to them, and which bound the plaintiff to pay for the slaves absolutely, if they or either of them should die whilst in plaintiff's employment. The witness and Hinson refused to execute such a bond, and left, without having tendered any bond. Hinson testified substantially to the same facts; and another witness testified to the declaration of the defendant, subsequent to that time, that the reason why he did not let the plaintiff have the Negroes was, that they were unwilling to go with him. The defendant then offered testimony impeaching the character of the last witness, and proving that H. Abrams and Hinson would have been insufficient sureties; and that he had subsequently hired his slaves to one Mills at a less price, reserving to himself the privilege of taking them back, should the plaintiff apply for them, and comply with the terms agreed upon.
The defendant's counsel contended that if the plaintiff's testimony were all taken to be true, he could not recover, because there was no consideration for the contract, and because the plaintiff had failed to prepare and tender such a bond, with good and sufficient (101) sureties residing in the county of Rutherford, as he had agreed to give. His Honor, the presiding judge, charged the jury, that there was a sufficient consideration for the contract, and that if the plaintiff's testimony was true, the defendant, by his conduct, had made it unnecessary for the plaintiff to prepare and tender a bond, and he was entitled to recover. The jury returned a verdict for the plaintiff and judgment being rendered thereon, the defendant appealed.
This case was argued at the last Morganton Term, by The case presents two questions. On the part of the defendant, it is urged that there is no consideration to sustain the promise on which the action is founded; and secondly, that there is a *108 condition precedent which it was incumbent on the plaintiff to prove, before he can maintain his action.
There was a sufficient consideration for the promise made by the defendant. Mutual promises constitute legal considerations. Each is a consideration for the other. The defendant in this case, agreed to hire to the plaintiff four Negro men for a year at a stipulated price, to be paid monthly, and the plaintiff agreed to secure the payment of the hire, by a bond with good and sufficient sureties. Here are mutual promises, which constitute a good consideration for the agreement on each side. The action is for a violation of this contract by the defendant, in refusing to deliver the slaves at the time specified.
The contract sued on was an executory one, and to entitle the plaintiff to maintain his action, something was to be done by him which preceded the obligation on the defendant to perform his part. To secure the payment of the hire, and the safe keeping and return of the slaves, the plaintiff was to give a bond with good and sufficient sureties residing in the county of Rutherford. The delivery of such a bond was a condition precedent, or an act to be performed simultaneously with the delivery of the slaves; in other words, they are concurrent acts. (102) He cannot, therefore, recover in this action, without averring in his declaration, the performance of the act, or that which is equivalent thereto. Thus the plaintiff may aver that he tendered or offered to do the act, and the defendant refused it; Jones, Assignee, v.Barkley, Doug., 685; Terry v. Williams, 8 Taun., 65; or that the defendant hindered the performance of the condition precedent, by a neglect or default on his part; 1 Term Rep., 645; Hotham v. East India Company, 1 T. R., 638; Heard v. Woodham, 1 East, 619; or that he discharged him from the performance of it. Doug., 684. In all these cases the declaration will be sufficient. Here, an agent attended on the day appointed, at the defendant's house, and demanded the Negroes, at the same time notifying the defendant that he was ready to give the bond and sureties as required. The defendant refused to deliver them, stating that he intended to work the slaves himself. This we consider equivalent to an averment of performance. It is said, however, that to give that effect to the conduct of the defendant, the plaintiff must show that he had, at the time, such a bond as the contract required, duly executed for delivery. The case in 2d Douglass is an authority to the contrary. The defendant was notified that the plaintiff, or his agent on their behalf, was ready to give such a bond. The defendant refused to let him have the Negroes. This was equivalent to saying, you need not tender your bond — I will not receive it. This certainly was a discharge to the plaintiff of the necessity of making a *109 formal tender. Where was the necessity of going through the form of offering a bond, when told if he did, he should not have the slaves? As to the second alleged contract, it was never completed.
We concur with his Honor on both the points ruled by him.
PER CURIAM. Judgment affirmed.
Cited: Grandy v. McClees,
(103)
