Nesbitt v. Drew

CHILT.ON, J. The two agreements found in this record, entered into between the same parties on the same day, bearing even date and refering to the same subject matter, must be construed and considered as forming one contract, as though they .were both embraced in the same instrument. Thus considered, they are in substance as follows : Drew hires to Nesbitt his two negro men, Jeffro and Daniel, for the term of twelve months, commencing the 25th January IS47 and closing the 25th January 1S4S : He is to clothe said negroes comfortably and is to deduct or account to said Nesbitt for all the time of said slaves lost by sickness or otherwise. In consideration of which hiring, Nesbitt & Paty agree to pay him or his order at the end of said term, (25th Jan. 1848,) the sum of one hundred and sixty-eight dollars. This is, beyond all question, an entire contract. A gross sum is to be paid for the services of the two slaves for one year.. — Story on Cont. (2d edit.) §§ 21-2, page 14,and notes; Story’s Eq. Jurisp. ^ 470-9. The rule applicable to such contracts is, that the entire fulfilment of the promise by either is a condition precedent to the fulfilment of any part of the promise by the other. The hiring, which is the consideration, being entire wholly fails if the owner refuses to perform the contract and takes the slaves out of the possession of the party to whom they are hired before the expiration of the term and against his consent. It is not for the court to say that Nesbitt would have hired the slaves if he had known that one of them was to be taken out of his possession some months before the term of hiring expired. — Story on Cont. (2d edit.) § 23; Miner v. Brad [383] ly, 22 Pick. Rep. 459. Drew, by taking away the slave Daniel, violated the contract and cannot be allowed to enforce it against the defendants below, who never acquiesced in his act or waived his compliance with the agreement. — Wright v. Turner, 1 Stew. 29; McGehee v. Hill, 4 Por. Rep. 170; Givhan v. Dailey, Adm’r, 4 Ala. 336; McGehee v. Walke, 15 ib. 188-9. But it was supposed by the presiding judge hi the court below, that as this contract provided that Drew should deduct or account for the time lost “by sickness or otherwise,” he had the right to take and retain the slaves against the consent of Nesbitt and to allow a corresponding abatement upon the note for the hire. Such is not the correct construction of this contract. The party hires'the slaves fora year, and it would not only defeat the palpable object and intent of both parties as plainly indicated by the contract itself, but would seem to involve an absurdity to say that Drew could the next day after the hiring haye taken away the slaves and terminated the contract as to the remainder of the term; or, to state the proposition in a more imposing form, that he might wait until one of the slaves became sick, and when Nesbitt was most in need of the services of the other deprive him of his service and refuse to deliver him up on demand. This would be to construe the contract not as a hiring for a year, but at the pleasure of Drew, to defeat the clearly expressed object and intention of the parties by a vague, indefinite expression, and above all, it would be torturing a stipulation evidently inserted for the benefit of Nesbitt, as is clearly indicated by the context, to his disadvantage and to the benefit of Drew. That the latter is to deduct or account for the time lost by sickness or otherwise does not authorise him to violate the contract by taking away «he slaves, any more than it would entitle Nesbitt to a deduction from the price, if he had capriciously sent the slaves off and dispensed with their services. When the terms of a contract are ambiguous or indefinite, they will be limited to the subject matter of the contract and to its obvious nature and design. — .Story on Cont. 567, § 641, and cases cited in note 2. If the contract be defective or ambiguous in its terms, it will be liberally construed, not literally, but the law will supply whatever is necessary to effect the object and intention of the parties, (Ibid,) and will so interpret the ambiguous expression as to make it conform, ta [384] the intent. We must then understand by the term “otherwise” in this contract, time lost by the death of the slaves, or by their disability to render service arising from any cause unmixed with the fault of the parties to the contract. The case of Davis v. Wade, 4 Ala. 20S, cited by the counsel for the plaintiff in error, is in point ¡p sustain this construction. This case is wholly unlike that of Merriwether v. Taylor, 15 Ala. 735; for in that case the defendant accepted the work and thereby waived the complete performance of the special agreement. The facts of this case, as set out in the bill of exceptions, show no sufficient excuse for the withdrawal of the slave Daniel from the service of the defendant below. There was no restriction in the contract as to the kind of labor they were to perform, but the subscribing witness thereto stated that they were hired to work as hands at the steam mill, a part of the ordinary labor about which consisted in rafting saw logs down the river to it. It was certainly no breach of good faith nor a violation of th"e contract on the part of Nesbitt to employ the slaves in the labor which at the time of the hiring and long before, as the said witness states, was carried on at the steam mill. They were employed about the business for which they were hired, according to the proof shown by the bill of exceptions, and Drew may with the same propriety insist that they should not work near the steam engine for the fear of being killed by an explosion, as that they should not assist in rafting logs for fear of being drowned. He made no exception in the contract as to either, and both working the engine and rafting the logs constitute a part of the ordinary and necessary business of the establishment. We will not say but that there may be cases where if the person hiring the slaves puts them in perilous situations without the intention of the parties, and without the scope and purview of the contract, the owner might not be justified in abandoning the contract and reclaiming his slaves. So in respect of the moral condition of the slave. — Hogan v. Carr & Anderson, 6 Ala. 471. But this is not shown to be one of those cases. Judgment reversed and cause remanded.