52 N.C. 93 | N.C. | 1859
The plaintiff, in making his title to the slave, gave in evidence a paper-writing, delivered by the defendant Brooks to bargainors (94) of the plaintiff, in the following words:
"Received from Jollie, Hanks Holt $300, in part payment for a negro man by name of Ned, which negro has run away, and I hereby bind myself to deliver said negro by September court to the said Jollie, Hanks Holt, or forfeit to the said firm the sum of $50. Test, W. Hanks. Signed by Marion Brooks."
The defendant insisted that the said paper-writing was a mere receipt, and that it was competent for them to show that it did not contain the real contract entered into between the parties. For that purpose they offered to prove declarations made by Jollie, one of the parties thereto, subsequently to its execution, that said paper-writing was not intended to convey the title to Ned, but was merely an executory contract of sale, defeasible by the nondelivery of said slave, and the fulfillment of which was secured by a penalty of $50; that said Brooks had not kept his contract, and therefore he, Jollie, did not claim Ned, who, at the time of *74 the declaration, was still a runaway, but intended to sue Brooks for the money that had been paid upon the price, as well as for the $50 forfeiture.
The court was of opinion that the paper-writing was more than a mere receipt; that it contained a contract to convey the title in said slave, and rejected the evidence offered by the defendants. The defendants excepted and submitted to a verdict. Rule of venire de novo discharged, and appeal by the defendants. Simple receipts for money which contain no evidence of a contract between the parties are liable to be explained or altered by oral testimony, but it is not so with regard to the written evidence (95) of a contract, whether executed or executory.
Therefore, in the Superior Court the judge properly rejected the testimony offered to explain the legal effect of the instrument under date of 15 August, 1855. We are of opinion, however, that the sense of that paper was misinterpreted by his Honor, and that it does not, as was supposed, convey a title to the slave. This is a question of law, which must be decided upon a consideration of the language of the instrument alone. By a reference to that it will be perceived that $300 was received, not in full, but in part payment for the slave, and it then sets out that he is a runaway, and binds the signer, under a penalty, to deliver him by a certain time. There seems to have been something left for both parties to do, the one to make complete payment (or a satisfactory substitute), the other to make the delivery of the slave. Jollie, Hanks Holt did not intend, and, as we suppose, were not liable to pay until the slave was delivered, and there was no obligation on the part of Brooks to deliver until the other party had announced his readiness to make satisfaction for the price. There could not have been, therefore, that transmutation of property necessary to support the action; for, upon such transmutation, eoinstanti correlative rights spring up: on the one side, property in the thing; on the other, property in the price — rights which we have shown the parties to this paper could not have contemplated.
We conclude, therefore, that the instrument per se is evidence only of a contract, executory in its nature, and not executed, and that upon it alone, proprio vigore, no right of property in the slave can be legally asserted.
PER CURIAM. Judgment reversed, and a venire de novo. *75
Cited: Wade v. Carter,
(96)
