Leslie v. Langham's Executors

40 Ala. 524 | Ala. | 1867

BYED, J.

1. The appellees have made an assignment of errors, with the consent of appellant. It does not appear that they took any bill of exceptions ; and under the law, and the. consent endorsed on the record, they have no right to assign errors on the bill taken by the appellant. — Code, § 2354.'

2. The promissory note upon which the suit viras brought is not set out in the record, and we must construe it as it is set out in the complaint. The bill of exceptions does not purport to set out all the evidence introduced on the trial; and in the absence of a copy of the note, and of the evidence introduced, we cannot hold that the court below erred in the charge given.

3. It has long been settled in this State, that the hirer of a slave for a fixed period becomes a purchaser of the slave for that period; and that if the slave dies before its expiration, the loss for the balance of the term of hiring must be borne by the hirer. A recovery for the entire amount of the contract cannot be defeated, by showing that the hirer was prevented by the act of God from deriving a profit from the services of the slave. — Ricks v. Dillahunty, 8 Porter, 133; Outlaw et al. v. Cook, Minor, 257. In the latter case, the court say : “The tenant or hirer is considered as a purchaser for a limited time, and takes the property subject, during the continuance of the interest, to the same risks as if he were the purchaser of the fee simple.” If the court below erred on this question, it was in favor of the appellant. In the absence of any stipulation controlling the matter, we are satisfied that the hirer must bear all losses which occur during the term of hiring, unless they are occasioned by the act or conduct of the owner of the slave, or the person from whom the hirer employed him ; and this we conceive to be true as a general rule.

4. In the case of Jeffreys and Jeffreys v. The State, decided at the January term, 1866, we held, that slavery in this State was destroyed in May, 1865. Whether the State was in or out of the Union at the issuance of the proclamation of President Lincoln, in January, 1863, makes no distinction or difference. If in the Union, he had no constitutional authority, nor had congress any to confer on him, to issue and enforce it at that time ; and if out of the Union, in either case, it could have no force or validity until the Federal government was enabled by conquest, or the power of arms, to enforce it. Under the law as above announced, the appellee was entitled to recover; and we are unable to see that the appellant has any cause of complaint as to the amount of the recovery.

5. Though the court permitted evidence to go to the jury, to show that it was understood between the parties that the note was to be paid in Confederate treasury-notes; yet we must presume from the complaint, and the fact that proof was made of such understanding, that the note did not so stipulate; and the court did not therefore err, in refusing to give the first charge asked by the appellant. The effect of such a charge would be to authorize the interpolation of a stipulation which was not a part of the written contract. The subject of the contract was the hire of a slave, which at the time was lawful; if it had not been, parol evidence would have been admissible to show that it was not. A parol understanding to receive Confederate treasury-notes in payment, when the contract is written, and lawful, and payable in money, is not a part of the contract, and, therefore, not obligatory on either party thereto.

It is true that an ordinance of the convention of 1865 authorizes the courts to inquire into the consideration of a contract, and that the parties contracted to pay and receive Confederate treasury-notes in discharge of the contract; but this was permitted for the purpose of ascertaining the amount of the recovery, and not to defeat it in toto. For the former purpose, the evidence might have been admissible, but in no event for the latter. — Addison on Contracts, pp. 118, 811-2.

6. The last charge asked by the defendant was abstract, and, so far as we can see, the refusal to give it was beneficial to appellant; and if correct as a general proposition, the refusal to give it worked no injury to him.

It only remains for us to say that there is no error in the record, of which appellant can complain, and that the judgment must be affirmed.