5 Port. 318 | Ala. | 1837
This was an action of covenant, which was tried upon, an issue, taken to the plea of covenants performed, with leave to the defendants, to give any special matter in evidence, which would constitute a good defence. On the trial of the cause, in the Circuit Court of Morgan county, it was proved that the bond, dated the, twenty-third of December, eighteen hundred and thirty-three, containing the covenants, for the alleged breach of which, the action was brought, was made by the defendants, upon the hiring of two slaves by the plaintiff, to the defendant, Augustin A. Hewlett, for the year eighteen hundred and thirty-four.
The defendants covenanted, among other things, to pay to the plaintiff, on or before, the twenty-fifth of December, eighteen hundred and thirty-four, for the use of the slaves for that year, one hundred and fifty dollars,' and also to return the slaves to him, on the twenty-fifth day of December, eighteen hundred and thirty-four. That one of the slaves died in the possession of the defendant, Augustin A. Hewlett, in June, eighteen hundred and thirty-four, who shortly afterwards permitted the other one, to go on a visit to the plaintiff, and that the plaintiff detained the said slave, from the time of the visit.
The Circuit Court gave two several instructions to the jury.—
First — That the death of Fanny, if without fault or negligence of the defendants, discharged the covenant to return her.
Second. — That if the plaintiff detained the other slave from the defendants, for a part of the year, for which they had hired the slave, they were discharged from their covenant to pay the hire of both slaves.
The Court refused to instruct the jury, that the action, which Hewlett had brought for the partial conversion of the surviving slave, destroyed the right of the defendants to insist, they were discharged from their covenant to pay hire. To the instructions, and to the refusal of.the Court to instruct, the plaintiff excepted,
The first question made in this case was, whether the plaintiff be entitled to recover the value, of the slave, Fanny, His right to do so, was asserted' to be.the effect of the failure of the defendants,, to perform their express covenant to return the slave;
The .express covenant of a tenant, to leave the lease-hold premise,§• in good repair, binds him to repair any injury to them, or answer in damages for his failure to do so, although the injury was caused by an act of God, or of a public enemy. The destruction of the premises from such causes, will not excuse him from the payment of the rent, which he had covenanted to pay.
It is clearly settled also, that a contract, to do an act, which it was lawful to do, when the contract was made, will be discharged by a statute passed afterward, and before the day of performance, prohibiting such an act. It is a good excuse for the failure to perform an obligation, condition or promise, possible when either was entered into, that it became impossible before the day fixed for performance.
Where a person let to main-prize, dies before the day when his main-pernors are bound to produce him, their obligation is discharged. It is a good excuse for not returning a "borrowed horse, which the bailee had promised to return, upon the request 'of the bailor, that the horse died without the de
The most obvious difference, between the cases of express covenants of tenants, and the others which have been mentioned, is, that in the former, the accident, although it was unavoidable, which produced the injury, did not necessarily prevent the party from performing his covenant. The same accident; which destroyed the premises, did not make it impossible to rebuild them, or pay rent.— But in the other cases, the inevitable accident, made it impossible to do the act, which the party had agreed should be done.
The defendants in this case, were prevented by the death of the slave, Fanny, without their default, from returning her according to their covenant, and they are entitled to a discharge, from so much of their contract, as the act of God disabled them from performing. By the contract of hiring, the hirer acquired an interest in the slave, during the term fixed by the contract, and the plaintiff, except that interest, .retained all the property which he ever had in the slave. The dea$a of the slave, at the time it occurred, caused a loa» to the hirer of her services, for the unexpired pfort of the term, who is not excused, by that event, from the payment of her hire. The hire, is the purchase money, of an interest in the slave, for the term, and that interest, was at the risk of the hirer. The
After such a result of an action against the hirer, his failure to return the slave at the end of the term, would be no breach of covenant, for which a complaint of the plaintiff ought to be entertained. In such a case, the hirer’s loss of the possession, and inability to return the slave, would be the consequences of the breach of the plaintiff’s own implied warranty, of the title and the possession, to the bailee, during the whole term, and no hire could be recovered. The event which put an end to the interest of both parties in the deceased slave, determined with higher authority, than can be claimed for the judgments of human tribunals, that the plaintiff never had a title to her which could endure any longer.
If in the contract of hiring, the separate hire of bach slave had been fixed, the right of the plaintiff to recover the hire of the deceased one, would be un
As the contract is entire, and the plaintiff deprived the hirer of the possession of one of the slaves, for part of the term, the next question is, whether he lias a right to recover any thing. Hiring is one species of bailment, and one of the implied obligations of the bailor, is to do no act, which will deprive the bailee of the thing, during the time of the bailment.
The covenant of a landlord, to repair or rebuild, and that of a tenant to pay the rent, are independent of each other, and a breach of the latter, cannot be defended, upon the ground that the landlord refused to rebuild the premises which had been destroyed. Yet if a landlord evict his tenant, no rent can be recovered.
The same doctrine is applicable to a claim for wages or hire, where a bailor has deprived the bailee of the possession of the thing, before the end of the period of the bailment.
The plaintiff is not entitled to recover any thing as hire of the slave,' which he detained from the hirer, during the latter part of the term; and as the contract to pay the hire of both is entire, nothing-can be recovered.—Cutler vs Powell.
It is not necessary to consider, whether the defendant Hewlett, is entitled to the remedy which he sought by his action, against the plaintiff.—
The Court is' of opinion that there is no error in the instructions of the Circuit Court.
Judgment affirmed.
6 Viner’s Ab. 407. Sec. 3.-6. 6 Mass. Rep. 63. Chitty on Cont. 272. 6 Term R. 650. 8 Term R. 259. Platt. on Cov. 275. 1Law Lib. 121.
Dall. R. 210. Am’r Ju. Oct. 1833. Art. 3. pa. 250.
Platt. on Cov. 198,-274,-275,-283,-284. 1 Law Li. 87,-121,— 125.
Coke Lit. 206. 3 Com. Dig. 96. (D. 1,) 121. (L. 12.) (L. 13.) 7. Mass. R. 325, 338. 1 Ld. Ray. 317-321. 1 Salk. 198.
1Bac. Abr. 433,- Q. 1 Coke 98. 3 Com. 121 (L. 12.)
5 Munf. Rep. 483. Platt on Cov. 87. 1 Law Li. 87.
1 Bibb’s Rep. 536. 1 Ala. Rep 257. 4 Hayw. Rep. 10.
Story on Bail. 255,-256,-262.
Platt on Cov. 197. 1 Law Li. 81. 1 Ld.Ram. 77,-369. 1 Term R. 671. Co. Litt. 148. Cowp. R. 242.
1 Salk. Rep. 65.
6 Term. R. 326. 1 Salk. 65.