Pope v. Randolph

| Ala. | Jan 15, 1848

DARGAN, J.

The charge of the court first objected to, and the charge requested, must be considered in reference to the testimony before the court. The defendant introduced proof tending to show, that John Shields, the father of the deceased, hired three slaves to the defendant, in the early part of the year 1839 — that it was the understanding at the time, that the hire should be paid to Singleton Shields, who was commencing business for himself; and in pursuance of this agreement, the negroes went into the service of the defendant, and it was agreed that the defendant should pay the hire to the son, as the father, John Shields, intended the hire, or the use of the slaves for the year 1839, for his son. The son, Singleton, also agreed with the defendant to work the McPhail place, with the three slaves of his father, and the defendant was to furnish three others, and the proceeds, or product of that place, was to be equally divided between the intestate and the defendant. The defendant sold this place in June, and put the purchaser in possession, and the deceased then went to the residence of the defendant, and also the three slaves; the deceased to serve as overseer, and the slaves to serve on this farm. On this evidence, the charge requested was, that if the jury believed, that John Shields hired said slaves to the defendant, with th^^iwd^Steáúig that Singleton Shields should have the for that year, that it was a contract between John ShieTuar and the defendant, conveying to Sing 1 <#iaA chose in action, and that his administrator could not recover® The court did not give the charge in \hlii charged, that if John Shields hired the slav&^toAhe dcfegifant, with the understanding that he should accomrfto John Shields, then the plaintiff could not recover; but if it was the understanding, and agreement, that the defendant should account for the hire to Singleton Shields, then the plaintiff could recover.

This charge, as given, when applied to the evidence, is correct. The rule of law is too well settled to be shaken, that a promise made to A, to pay B a sum pf money, founded on a sufficient consideration moving from B to to the promissor, is valid, and will entitle B to bring assumpsit. See 1 Ventris’ Rep. 318; 2 Cooper, 443; 1 Gill & John. 488; 16 S. & R. 169; 12 Johnson, 276. This promise is nothing like an assignment of a mere chose in action. The defendant owed John Shields nothing, nor did he owe Singleton Shields. But the proof shows, that the father, John Shields, intended to give his son, Singleton Shields, the use, or hire of the slaves for the year 1839. That either the intestate, or John Shields, the father, made the contract of hiring, and by the terms of the contract, the hire was to be paid to Singleton, the son, who also went into the employment of the defendant, and as the evidence discloses, had the control of the slaves. John Shields, the father, parted with the possession, with the view of giving the use, or hire of them, to his son, and the benefit of their labor was received by the defendant, and he promised he would pay the son. We cannot see that there is in this promise any thing like an assignment of a chose in action. It is a promise founded on a legal consideration, which was, the use or labor of the slaves. To whom did that consideration belong ? The testimony of the defendant showed, that the father parted with the possession of the slaves, for the purpose of giving to his son their services, or hire, for the year 1839. The consideration, then, that the defendant received for this promise belonged to the son, if the father could make a parol gift of the services, or use of the slaves for a year, to his son, and it cannot be denied that such a gift can be made. Under this proof, it is immaterial whether the father, John Shields, or the son, Singleton, made the contract of hiring; on either supposition, assumpsit might be maintained by the son.

The charge elicited by the request, that if the jury believed that the intestate and defendant were partners, in working the McPhail place, the plaintiff could not recover, is certainly not erroneous. The charge was, that although one partner could not sue his co-partner at law, yet after the dissolution, if they come to a settlement, and a balance is found due to one, that assumpsit will lie. This is too well established to need a reference to authorities. The charge was given on the supposition, that the intestate and the defendant had ascertained the amount due to the intestate for his services, on the McPhail place. This therefore renders it unnecessary to determine, whether assumpsit for work and labor could have been maintained by the intestate, for his services on the McPhail place, if the defendant and the intestate had made no agreement as to the amount of these services, or if nothing had ever been said by either in reference thereto.

The request made, that the promise by the defendant, after the death of Singleton, to pay John Shields $600 for the services of Singleton Shields, and the hire of the negroes, was void for the want of consideration, was given, but the court added, that the jury might look to that as a circumstance, amongst other things, in determining the value of those services.

We cannot perceive any error in this. The admissions of the defendant, as to the value of the services, would certainly be competent proof. The estimate he put on the value of the services, might be weighed by the jury, in the absence of any contract, or agreement as to the sum to be paid, in determining on the amount that the defendant should pay for those services; and as this promise was made wholly without any consideration, and had reference only to the consideration of the hire of the slaves, and the services of the deceased, it was a circumstance that might go to the jury, to show the estimate the defendant placed on the services rendered Mm. They might attach little or no importance to it, but it cannot be said to be irrelevant, or its admission erroneous.

Lastly — the request, that the hire of the negroes was an unexecuted gift, that the father could revoke, and that if the jury believed he had done so, and had settled with the defendant, that the plaintiff could not recover, was properly rejected.

It is true, that to perfect a parol gift, the possession must accompany the gift. See 1 Stewart & P. 56. And to divest the title of the donor, he must deliver possession of the chattel to the donee, or to some one for the donee. See 2 Ala. R. 117, and the cases there cited. But when the use, or hire of the chattel, is intended to be given, as this is not the subject of delivery from hand to hand — if the donor parts with the possession of the chattel itself, for the purpose of the gift, it is sufficient; for this is the only delivery that can be made of the subject of the gift.

We can see no error in the record, and the judgment is affirmed.