Thomason v. Dill

34 Ala. 175 | Ala. | 1859

STONE, J.

When this case was before in this court, (30 Ala. 444,) we laid down certain legal propositions, which, so far as they go, are the law of this case, and must not be lost sight of. The testimony on the former record, and in this, is not materially variant on any question which we propose to consider. Among the principles asserted by us when this case was first here, are the following: “ The stipulations and agreements entered into, and reduced to writing, on the 26th April, 1853, amouuted to an executed contract; passing the title of the slave to Thomason, and securing the payment of the purchase-money to Dill. * * * We think, however, that it should have been left to the jury, under appropriate instructions, to ascertain by their verdict— 1st, whether the agreement of the second day was nothing more than a promise by Thomason to give a note with sureties, pursuant to his offer the day before, without any surrender or modification of his right to the slave; 2d, whether the first note was considered inoperative, and the slave left with Dill in pledge that Thomason would give a new note with stipulated sureties; or, 3rd, whether by agreement the contract was so far modified as to be made executory, — Thomason’s right to the slave not to attach until he executed and tendered the proposed note. If either the first or the second proposition be affirmed by the jury, the plaintiff, on a suitable complaint, will be entitled to a verdict. The third proposition would entitle the defendant to a verdict. * * * The testimony shows, that the slave remained with him (Dill) in each instance, by Thomason’s permisson.”

We thus declared, in effect, that during the time the negotiations of the 27th were being conducted, Thomason was negotiating in regard to a slave, the title to which was in him ; and that the retention <of the possession of the slave by Dill was at least permitted by Thomason. In construing the charges asked and refused, we must keep these facts iii view.

Viewing these charges from the above stand-point, we do not think either of them should have been given. All the facts hypotheticated in the first charge asked, unaided by others, or by inferences to be drawn by the jury, are perfectly consistent with each of the thi’ee propositions stated in our former opinion, and are insufficient to determine whether this case falls within the one or the other of those classes. The second charge asked is almost equally defective. Stripped of the parts about which there is no contest, it makes Dill’s right of recovery to hinge on the inquiry, whether las insisted on. his right to have a note from Thomason with sureties, before he would deliver up the negi’o, and Thomason’s assent to this demand. This is not necessarily an averment of a change or modification of the contract. Dill may have insisted on his right to have a new note with sureties, in virtue of the offer of Thomason, made the day before, to give such new note, if Dill should afterwards desire it. Thomason may have assented to this demand, (of anew note withsureties,) because he regarded it as a matter of honor, as testified by some of the witnesses. He may have left the slave in the hands of Rill in pledge, or for his own convenience. "Under the charge as asked, the defendant might have succeeded in his defense, in palpable disregard of the principles settled in this case on the former appeal. The defendant was not entitled to a verdict, unless the two parties, Rill and Thomason, agreed — in other words, their minds concurred — in a modification of the contract, such as was mentioned in our former opinion.

The exception to testimony is not insisted on here; and if it were, we think there is nothing in it.

Judgment of the circuit court affirmed.