Jarrell v. Farris, 6 Mo. 159

Jarrell v. Farris

6 Mo. 159 | Mo. | 1839

Opinion of the Court delivered' by

Na'pton Judge.

The plaintiff in error, brought an action; of covenant against the administrator of Elias B. Cockev, upon, act agree» *160ment by said Cockey to deliver a thousand saw logs at specified-times- in the fall of 1837 and in the winter and spring of 1838, defendant plead non est factum and a special plea that the said Cockey in his life time did deliver at the plaintiffs saw mill one hundred logs . answering the description required by said agreement by the first day of October next following the date of said agreement, and one hundred by tire first''of November, in conformity with his covenant and that as to the residue of said logs the said Cockey was pre* vented-’ from delivering the same and complying with his -said agreement in that behalf by James H. Dougherty- one óf said .plaintiffs, who on thé first day of January- in- the year 1838-, made an assault upon the said Cockey, and then and there shot him, and inflicted a mortal wound upon him-,wrongfully and illegally, of.which. the said Cockey after?-, wards, to wit: -on.the twenty-eighth day of the same. January .died,-and by--means of which wound .the. said, Cockey from 'the' time of its infliction -was totally unable to attend to the furnishing said logs or doing .other business until he died as-aforesaid and -the said defendant says that the said Cockey vyas then by the act of the said James H. prevented and hindered from fulfilling his said covenant &e.

Covenant by C as^adni’Tof D, upon an a-ITtT doiivor stipulated p^t riods, 1000 thlt'if ii^hia life time, the logs &c. ,wid as to the dtesiduc was prevented 5ngm&c.elbyeB "one of the pitas, who on ,&C. assaulted wounded* d!^' by means of which *0. D died, and so ling his cove-dhmurred^to demurrer Held, that was

*160This plea was demurred'to, and the circuit court overruled the demurrer and the decision of that court in overruling the demurrer .is assigned for error in this court.

■ The doctrine is I believe well settled, that when the cov-ena?ltee does any act of forcible prevention, the covenantor is. released from the performance of his covenant, Platt on covenants .595 and authorities' there cited. Indeed this cou:Etíf Das recognized this doctrine in the case of Paulsel vs. Clendenen, 3 Mo. Rep. 230 so also, where the covenantee does 'any act by which the covenantor is incapacitated to his covenant. As if-A undertakes that J S shall many a certain woman before such,a day,.and the covenan-tee before that day marries her himself,” Platt on covenants p. 595. The applicability of this doctrine to the case under consideration is questioned on the ground, first that this plea does not shew that the act of the covenantor was reallv an . - .. , , A. an act of. prevention, it not appearing, hut that the killing *161occurred in a quarrel having no relation to the subject matter of the' covenant, second, because the covenant coulcl have been performed as well by the representative of Cock-ey as by himself, and that his death, in the ordinary course of nature could not have discharged his representatives; thirdly, because it does n ot shew that-the killing veas done with any intent or with any view to prevent the performance of the covenant, and lastly, because it would involve in a civil suit, a question of responsibility under the criminal , ■ n 1 ' •

coJ^^lc^10 forcibly pre-his covenantor^ released from the performance.- obvious" dis*11 nants for the ™ money "or transfer of and party stipu-^he former' deaíh of the obligor, eren t'hough ,. , , occasioned by obligee,°f the physical ca-capacity havingliguo connection formance quired. Oth-th'o ^personal services of a partyarestip-olatod for.

*161- . I apprehend'there is an obvious distinction between covenants for the mere payment of money or transfer of land or other property, and those in which the party stipulates-for work and labor, whilst the former class of obligation' not be released by the death .of the. obligor, even- though that death Was.occasioned by the act of the obligee, the enant being in such cases,-if I may be, allowed the term, mere lien on the property of the obligor, and his physical capacity or incapacity having no connexion .with the performance required. It does not by any means follow that principle is applicable to those obligations where the n.al services of a party are stipulated for. It is not a fair presumption either in law or fact, that a party who stinu-i . i ^ ^ , i , _ . , „ ■ iates to-haul saw logs, or build a house, intends to perform the labor by others and not in person, on the contrary he. has a fight to. perform the labor in person, and in law he is considered as doing the work-himself though in point:of it may all have been performed by.-his .servants.

If this distinction be well taken,- ho.w does the.plea.of defendant .stand the .test, was not the effect of Dougherty’s act, virtually to preyent .the .performance- of the Cockey supposing it to have -been as represented in-.the plea. It seems to come.completely within , the-principié la-id down in -the books, of an-act -dime' by the covenantee by. which the covenantor is incapacitated 'from performing- his covenant, this'is not an act'of- prevention,- but a-n the obligor from -.performing his covenant anddf it-had i n/-\T ' the -act- oi,v*od,pr. a third.- person., the. obligpr .would, not *162^aVG ^6611 re*ease<^’ ^ut ^ving been the act of one of the obligees it was well pleaded in bar.

A release from oneobii-feancaa to all and the act alledged the plea in this case is to a release of the whole obligation.

The intent with which this act was done catinot be mate-to t[le meiqts 0f the plea the effect of the act is all that can be enquired into.

The cases cited by the counsel for the plaintiffs in error., it is deemed unnecessary particularly to notice, they are all cases such aslhave alluded to, either whei’e the covenant was f°r payment of money or transfer of land, or where the act complained of and set up in discharge, was the act of God, or of the third party, and not the act of the obligee. ‘

^ Perceive any Particular difficulty in taking issue on this plea, because it is not alledged that the act of Dough • was se^ defence or otherwise justifiable. This would be good matter for a replication and need not be anticipated in this plea. It has also been urged that this plea, however good for Dougherty, could not be good as to the ° ° J ? other obligees. A release from one of the obligees is a release as to a^>anc^ we hold that the act alledged in this plea was equivalent to a release.

Upon the whole, the court believe that the plea is not on-]y sustainable in a legal point of view, but sanctioned by the oj ' principle of civil policy and sound morauty. Judgment af-i firmed,