Lee v. West

47 Ga. 311 | Ga. | 1872

Montgomery, Judge.

The evidence in this case shows that Clements, the agent of Lee, hired the servants of West, the plaintiff below, without any knowledge, on his part, that they were under contract to West. A few days afterwards, West had them arrested, but, it seems, discharged them, upon their promising to return to his plantation. The hands, instead of going to West’s place, returned to Lee’s. They were rearrested, at West’s instance, lodged in jail, and from thence discharged by the Freedman’s Bureau officer at Albany, Howard, by name. They were then, with Howard’s sanction, hired again by Clements, as the agent of Lee. These transactions occurred in January. Lee had no knowledge of them until April, when Clements informed him of them. He replied, that under the facts, as detailed above, the negroes might remain on his place. He had, previously to the occurrence, instructed Clements not to hire hands under contract to others.

It is unnecessary to consider whether Clements is excusable for not making more diligent inquiry in the first instance, before hiring. If the hiring under the sanction of the Freedman’s Bureau was legitimate, Lee is not responsible, for that is the only contract he can be said to have ratified. West’s contract with the negroes was a Court contract, at least it is so stated on its &ce, and was so treated in argument, though there is no evidence of its having been filed in the office of the County Court. Assuming it to have been a Court contract, West seems to have taken the course pointed out by the law for its enforcement, to-wit: by attachment. With this enforcement, the agent of the Bureau saw proper to interfere and discharge the negroes from confinement. Whether he would be liable to West or not, is a question not now before us. Upon the principle of inter arma leges silent, and for the reason that he was acting in a quasi military character, in subjugated territory, perhaps he would not. But what was to be done? Were the negroes to be compelled to roam as vagabonds over the country for the year, because they would not fulfill their contract with West, and the military authorities would not permit him to enforce compliance in the way pointed out by law ? Surely, this would be seriously detrimental to the best interests of the State, already very grievously suffering from this evil. Under the facts of this case, as they now appear by the evidence, we do not think Lee’s ratification of the hiring was such as to render him liable to West in damages.

2. As the case must go back, and another trial may be had, in which the evidence may be different, we will dispose of other points made by the record; and, first, we think that the Court prima facie had jurisdiction of both defendants in the joint suit for trespass, although Lee lived out of the county in which the suit was brought. If the evidence shows that the non-resident defendant was not a co-trespasser with the resident defendant, the jury, under the instruction of the Court, should find in favor of the former, no matter how much the evidence may show his separate liability for the trespass — - the plaintiff, of course, retaining his right to dismiss, as to the non-resident, at any time before verdict.

3. We think the correct rule of damages, when one person-entices away the servant of another, is the direct loss legitimately incurred in endeavoring to replace the servant, and the average net profits that were made by men of fair business capacity out of the labors of such a servant during the year for which the servant was hired. Tried by this rule, this verdict is certainly excessive. The evidence shows that the servants, hired were equal to eight good hands. The verdict gives the plaintiff 'more than-$600 as net profits for one year on a hand, who would, probably, before the war, have sold for about $1,000. The gross value of what the evidence shows the hands might have made with good farming, was some $600- or $700 per hand. By the contract, they were to get one-third of this, and from the remaining twó-thirds must be deducted all the expenses of carrying on the farm except the food of the hands, which, by the contract, they were to pay for, out of their-one-third- part of the crop.

4. There was error in granting a new trial as to Lee and refusing it as to Clements. But to avail himself of it, Lee should have excepted at the time. It is too late to do so after the second trial and verdict is had. It is analogous to a suit against a single defendant out of the county of his residence. If he chooses to appear and plead to the merits, he cannot take advantage of the want of jurisdiction in the Court after verdict. Nor can Lee set up the judgment against Clements as a bar to further proceedings against himself. A party injured may sometimes proceed against master and servant successively as well as jointly: 2 Hilliard on Torts, 522-3.

Judgment reversed.