| Miss. | Apr 15, 1868
delivered the opinion of the court.
This was an action of assumpsit in the First Distinct of Hinds Circuit Court founded upon a promissory note in the following words: “
“ $1600. Hinds Co., Miss.
“ Twelve months after date, I promise to pay Edward Herndon sixteen hundred dollars, value received.
“ James Henderson.”
“Dec. 28,1861.”
Henderson filed the plea of non-assumpsit, and plea of payment, with notice of set-off of $200 — also filed, with his plea of the general issue, notice that he was not liable on said note, and would prove, at the trial, “ that the contract was illegal, being given for a supposed slave. That the consideration had failed. That the contract contemplated Confederate money. That he would establish what, if anything, in specie, the plaintiff has a right to recover.”
Plaintiff in error filed replication to the plea of payment, and joined issue with defendant in error on his plea of the general issue. Upon these issues, the case was tried, and verdict for defendant in error.
The first ground of error assigned for reversal here is, “ that the court below erred, in permitting the defendant in error to give evidence as to the conversations, assurances, arguments, and conditions of the trade, spoken of between the contracting paz’ties, prior to the time such contract was reduced to writing and signed by the parties, and at the close of the trial ruling out part of it.”
In determining the question raised by this assignment, it becomes necessary to set out here all the testimony in the ease by and for the defendant in error, — which is as follows :
The defendant in error testifying in his behalf stated: That the promissory note sued on in this action was executed for the purchase of a negro girl, bought of plaintiff, and delivered to witness on the day the • note was executed. The girl was about fifteen years of age, likely and a good servant.
The plaintiff on the day of the sale represented her to witness as a good cook, seamstress and washerwoman, and ironer. She was not a good seamstress ; she did sew some for the family though, waited in the house, and was a good house servant.
She was not a very good cook — washed and ironed pretty well; she was a good, serviceable, likely servant, sound and healthy; plaintiff and witness made the trade the latter part of December, 1861. She had two children while witness owned hei-, and is still with him.
There was some Confederate money in circulation in the country then, but very little to the best of witness’s recollection. "Witness contemplated paying the note at its maturity in Confederate money.
Nothing was said, that witness now remembers, between
The currency of the country in December, 1861, consisted of Louisiana money, some gold and silver, &c. The Confederate money was then about as good as any other currency, very little if at all depreciated.
Plaintiff at first asked witness $2000 for the girl; witness refused to give that amount, and $1600 was the price agreed upon.
Witness was reluctant at first to trade or buy the girl, on account of the dangerous condition of the country at the time. .Witness made a good many objections to buying; the plaintiff tried to remove them all. Witness said he was afraid the Confederacy would “ go up,” and witness would lose the negro; plaintiff told witness it would not, and if it did, witness (calling him “ Uncle Johnny ”) should not pay a dollar for her.
He said he would never disturb or trouble witness about the note; he said witness should not lose a cent by the trade. Plaintiff said if witness could not pay when the note fell due, he would wait for th,e money.
. Plaintiff used a great deal of talk and persuasion to induce witness to trade, and purchase the girl.
He talked to witness a great deal, and witness finally concluded to purchase.
The note was executed, and so also was a bill of sale, on the day the trade was made. Witness produced the bill of sale, and it was read to the jury as proof.
Which is in these words:—
“ Bill ok Saxe.”
“Received of James Henderson, sixteen hundred dollars, in full payment of a negro girl named Jane, aged about fifteen years. Said negro I warrant sound in body and mind, and a slave for life. December 28,1861. Edward Herndon.”
The girl at the time of the sale was worth one thousand dollars in gold.
Witness met the plaintiff after the surrender of the Confed
The next witness for defendant in error, John Cook, testified as follows:—
“I was present at the camp of plaintiff on the day when the defendant bought the negro girl from plaintiff.
“ I heard some conversation between the parties in regard to the trade.
“ Defendant seemed reluctant to trade or buy, saying that the condition of the country was dangerous, and he feared the Confederacy would c go up.’
“ Plaintiff told him it would not c go up,’ and if it did, he would not collect the note, or would not trouble him for the money, or something of that kind.
“ I heard neither party speak of any particular, currency in which the note was to be paid. The circulation of the country was composed of Louisiana money, shin-plasters, railroad money,, some gold and silver, and some Confederate money.
“ The latter had not been long issued by the government, and was but little depreciated.
“ I drew the note sued on in this action, and also the bill of sale signed by the plaintiff.
“ I affixed the true date to them. I neither dated them backward or forward.
“ The trade was made on Sunday. I remember it was Sunday because it was a holiday, and several overseers were at the camp, because it was an idle day. I know the trade was on Sunday. I did not hear all the conversation between the parties relative to the trade.
“ They walked apart from the persons assembled at the fire, at one time.
“Iheard nothing that passed between them there. The plaintiff at the time was a negro trader.”
“ I was at plaintiff’s camp when defendant purchased the girl; defendant is my father.
“He was unwilling to purchase on account of the condition of the country.
“ He was afraid the Confederacy would ‘ go up.’
“ Plaintiff talked to him a great deal, in order to induce him to purchase.
“ Told him he would not call on him for the money, if the negro was lost by the result of the war. Defendant took the negro home the day he bought her. This occurred on Sunday. I am sure it was Sunday.”
The counsel for plaintiff in error objected to all the testimony of defendant in error, John Cook, and David Henderson, going to the jury, relative to' the conversations between the plaintiff and defendant at the time of the trade, and before the same was reduced to writing, and objected at the time to all questions asked the witnesses by defendant’s counsel, calculated to elicit such evidence as the loose remarks of plaintiff, and his alleged promise not to collect the note.
The court decided, as the objections were severally made to the testimony of said witnesses, that the same should go to the jury, to be subsequently ruled out, if the court should consider it improperly admitted.
. To which rulings of the court below, the plaintiff excepted at the time, and now makes these rulings as grounds for his first assignment of error.
The defendant in error had a right to introduce testimony to sustain his grounds of defence, set out in his notice filed with the general issue.
“ That the note was given for a slave, and that the consideration had failed, and that Confederate money was contemplated as the kind of funds the note should be paid in.” All the .testimony of these witnesses tending to establish these grounds of defence, was properly admitted by the court.
On the production of the bill of sale by defendant in error
It was illegal testimony, tending to enlarge the terms of the written contract, and add to it conditions abandoned .by defendant when he received the bill of sale of plaintiff, for the slave.
The court should have excluded all the testimony of Cook and David Henderson from the jury, in which they testify to the same facts, testified by the defendant in error, and objected to by plaintiff in error.
The court below excluded from the jury “ the promises of the plaintiff not to collect the note if the Confederacy failed.”
Although this should have been done, we think the course subsequently taken by the court regarding this illegal testimony sufficiently remedied the evil effects it may have had on the minds of the jurors, in giving the following instructions asked by the plaintiff in error, which virtually ruled out the testimony complained of by the directions therein contained, as to the weight and consideration they should place upon the same in making up their verdict:—
“i Instruction for plaintiff. — A mere voluntary promise without consideration, made by a boná fide creditor not to sue or to demand payment of his debt on the happening of a contingency, is not binding in law, and the legal right to collect the demand by law is in no manner impaired by such promise.”
“ 5. Instruction for plaintiff. — -All evidence as to the conversation, offers, and propositions of plaintiff and defendant is merged in the written contract, and must not be considered by the jury as evidence, in finding their verdict.”
“ 6. Instruction for plaintiff — Unless it appears in evidence that the alleged promise of plaintiff not to demand payment of the note sued on, in the event that slavery should be destroyed by the war, constitutes a part of the note sued upon, or is inserted in the bill of sale for the slave, or otherwise*599 reduced to wilting by the parties, the jury should not be governed by such alleged promise, in making their verdict.”
“16. Instruction of plaintiff. — No warranty as to the slave not contained in the bill of sale, can be considered by the jury.”
These instructions cover all the illegal testimony, and clearly point out to the jury that they should entirely disregard the the same in arriving at their verdict.
We, therefore, are of the opinion that this assignment, under the circumstances, is not well taken.
The second ground of error assigned is, that the court erred in refusing to grant plaintiff’s thirteenth instruction :—
“ There being no special plea that the contract in this case was on Sunday, and no notice given of that matter under the plea of the general issue, the evidence relating to that matter should not be considered by the jury.”
Before the adoption of the Revised Code of 1857 by our legislature, proof of the execution of a contract on Sunday could be given in evidence under the general issue, without notice to the plaintiff.
Article 97 of the Revised Code, p. 493, altered this practice, “ and requires the defendant to give notice with the plea of the general issue of any affirmative matter in 'avoidance which by law may be proved under such plea, otherwise sueh matter shall not be allowed to be proved at the trial.” And the defendant may in all cases “ plead the general issue, and give written notice therewith of any special matter which he intends to give in evidence in bar of the action, and which he would be otherwise obliged to plead specially.”
The legislature clearly intended to limit the defendant to such proof as he should give notice of his intention to introduce at the trial, and prohibits him from proving anything else.
Was the defendant under this statute required to give notice of his intention to give in evidence, under the general issue, that the note and bill of sale, and contract for the sale of the slave, mentioned in the bill of sale, was made on Sunday?
We think he was.
He had to prove affirmatively that the sale and delivery of the slave, and the execution and delivery of the note and bill of sale for the slave, were all completed on the Sabbath of the 29th of December, 1861, and not on the 28th day of December, 1861, the date affixed to the note and bill of sale.
The court erred in permitting any testimony to go to the jury, showing the date of the purchase, &c., in the absence of all notice from defendant in error to plaintiff in error, of his intention to introduce such testimony; it was in violation of that part of the statute which declares, that unless such notice is given, otherwise the matter in avoidance “ shall not be 'allowed to be proved on the trial,” which is mandatory.
Such a course took the plaintiff in error by surprise, cutting him off from all rebutting testimony, and giving the defendant in error an advantage at the trial the law cannot sanction.
The court could, at any time before the retirement of the jury, rule out this testimony, and should have given the plaintiff’s 13th instruction.
It was error -to refuse it.
The third ground of error assigned is the refusal of the court below to give the 11th instruction of plaintiff in error.
This instruction is nearly identical with plaintiff’s 13th instruction, and should have been given by the court.
We deem it unnecessary to notice any of the other grounds of error assigned, except the last.
The overruling of the motion for a new trial-.
This motion was based upon several grounds. The only grounds we will notice are, “ that the court erred in giving instructions, and that the verdict was contrary to and in disregard of the instructions of the court.”
But refused to grant the plaintiff’s 13th instruction, which is, “ there being no special plea that the contract in this case was on Sunday, and no notice given qf that matter, under the plea of general issue, the evidence relating to that matter should not be considered by the jury.”
There being no notice filed with defendant’s plea of general issue, that he would introduce atthe trial proof to show the sale of the slave, the execution and delivery of the note sued on was on Sunday, the 29th of December, 1861, we are at a loss to see why the learned judge did not give the 13th instruction of the plaintiff in error, after he had given plaintiff’s 10th instruction.
To have been consistent, he should given both instructions, or refused both.
The court gave the 5th instruction of defendant, which is as follows
“ If the jury believe from the evidence that the contract was made on Sunday, they must find for the defendant, whether the note sued on is dated on Sunday or not.”
It was error to give this instruction, after having directed the jury in plaintiff’s 10th instruction to disregard the testimony they are required to notice in defendant’s 5th instruction.
The jury were left to adopt such course as they might see proper; to regard or disregard either instruction in making up them verdict; they were left virtually without any guide for their deliberations on the most important question before them in the cause. It is evident from the verdict, that they were influenced by the direction laid down by the court in defendant’s 5th instruction, and found their verdict upon evidence that had been ruled out by the court by the instructions given for the plaintiff in error..
For these errors we think the plaintiff in error is entitled to