46 N.C. 141 | N.C. | 1853
The defendant, as administrator of Lewis Purvis, hired out a negro girl at public hiring, in June 1851, for the residue of the year, to the plaintiff. Though not known at the time, it soon became manifest that she was pregnant, and in the Fall she was delivered of a child.
There was proof of a long and well established custom in the county, embracing the place of the transaction, and the residences of the parties, to allow the hirer of a woman in such cases ten dollars.
The evidence of the custom was objected to, as immaterial. but the Court held, that, as there was nothing in the law or in the contract to forbid the operation of the usage in case it was so generally known and acquiesced in as to make it a part of the contract: in case, in other words, the custom was a consideration under which the biddings were conducted, and under which the parties acted, in making their bargain, the testimony was material, and if believed, the plaintiff was entitled to recover.
Verdict for plaintiff, and appeal to this Court. We differ with his Honor upon the question raised on the trial, as to the admissibility of proof of the custom or usage relied on by the plaintiff, to imply a contract in his favor. It is directly opposed to the principle laid down by the Court, in the case of JONES v. ALLEN, 5 Ired. Rep. 473. That was an action brought by a physician, against the owner of a slave, for professional services rendered to the slave, while in the possession of a hirer, and at the instance of the hirer. In support of his action, the plaintiff offered to prove, that, in the section of country where the hiring took place, it was the universal custom for the owners, and not the hirers, to pay for medical attendance upon the slaves, but the testimony was rejected. This Court held that the testimony was properly rejected, and said that "no doubt the liability of general and special owners of hired slaves, for the expenses of their maintenance and medicine during sickness, is often and perhaps generally the subject of contract between them. But, without some stipulation on that point, the general rule of law must operate, and cannot be controlled by any understanding to the contrary, in particular neighborhoods.
There was no established general custom on the point; for, if there was, that would be the law: but a mere local usage in a small part of the country cannot change the law, and give the plaintiffs an action against one man, when they *144 are employed by another. So, in the case before us, it is not contended that the custom is a general one; nor are the terms very generally defined. Whether it extends to hirers by the year, by the half year, by the month or the week, we are not informed. If to the latter, it is very unreasonable, and ought to be abolished by force of the maxim, malus usus abolendus est. But the decisive objection to the allowance of such neighborhood customs is the uncertainty in relation to the proof of them, and the great inconvenience of having local laws, in any part of the State, to regulate matters which ought to be the subjects of express contracts. But the counsel of the plaintiff relies, for the support of his action, upon certain passages in Starkie on Evidence, vol. 2, page 258-9, of 1st Am. edition: "Where parties have not entered into any express contract, a presumption nevertheless arises, that they meant to contract, and to deal according to the general usage, practice and understanding, if such exist, in relation to the subject matter." And again: "Where an agreement between parties is general and doubtful, the custom and usage of the country in which it was made, are freqently [frequently] evidence of the terms upon which the parties meant to contract; for, in the one case, their silence raises a presumption that they meant to be governed by the usual course of dealing in such cases prevalent in the neighborhood." We need not inquire whether Mr. Starkie's doctrine be correct or not; for it is not at all applicable to the case. The parties here did enter into "an express and specific contract," which was neither general nor doubtful, and therefore left nothing to be presumed or inferred.
Judgment reversed, and a venire de novo awarded. *145
