19 Tenn. 158 | Tenn. | 1838
delivered the opinion of the court.
Upon the pleadings and proofs in this case, the circuit court charged the jury — 1. That a verbal agreement to concede the privilege of permanently overflowing the land of the plaintiff, by a mill dam to be constructed below his line, would not be valid, but would be within the statute of frauds: and 2. That the written agreement between the plaintiff and Hayter, securing to the latter, the privilege in question,
But, with-regard-to the second proposition of the court below, it has been urged, that the court erred, because Hayter, with whom the written agreement was made, was to have been the partner of the defendant in the construction of the mill, and that, therefore, the latter could, in a court of chancery, compel Hayter to transfer to him a moiety of the legal title in the privilege. If the verbal agreement had béen valid, it may well be questioned whether the plaintiff, who, in the execution of it, violated its terms so far as to give a written concession of the privilege, not to the defendant and Hayter jointly, but to Hayter alone, should be permitted, in a court of law, to recover from the defendant, the consideration, upon the ground, that the latter could, therefore, protect himself against the wrong done him, by litigating the matter with his partner, and perhaps with the plaintiff, in a court of chancery.
But into that, it is not necessary to enquire, — for we have said that the verbal agreement was not valid. The only agreement, therefore, to which we can look, is the written one between the plaintiff and Hayter, to which the defendant appears^ to be an entire stranger. The concession of privilege, under the seal of the plaintiff, is made to Hayter alone; the promise to pay to the plaintiff the consideration is made under the sig^-nature and seal of Hayter alone. The written contract, on both sides, under the seals of plaintiff and of Hayter, excludes the defendant from benefit and liability, and he may well say to them both in this action, that the matter Was res, inter alios acta.
Let the judgment be affirmed;