Moseley v. Wilkinson

GOLDTHWAÍTE, J. One of the distinctions between case and assumpsit is, that if the former action be brought on a breach or omission of duty growing out of a contract, the contract itself need not be formally stated in the declaration (1 Ch. PI, 124, 885), unless it constitutes a material part of the plaintiff’s case. —Bovan v. Jones, 6 D. & B. 483. Here the cause of action, as stated in the first count, is not on the contract of luring, but for an omission of duty, in not treating the slave with proper care while she was hired. The terms of the contract were entirely unnecessary; and whether the slave was hired until Christmas, or until the first of January, could not affect thp plaintiff’s right to recover, if, during the time she was [416] hired, the defendant let her die for want of attention. —Stoddart v. Palmer, 3 B. & C. 2. The same rule holds as to the statement of the consideration of the contract. It matters not, in this case, what was the consideration. The right to recover does not depend upon it, and whether it was an amount certain, or as much as the hire was reasonably worth, is altogether immaterial. The recovery on this count depends upon the omission of duty, and not upon the amount of hire to be paid. So, if the slave was hired to work as a cook, and was employed to. work in the field, and died because she was thus employed, it is not necessary, in framing the declaration in case, as we have seen, to state the consideration formally. The gist of the action is the breach of the duty, and no more need be stated than is necessary to show the duty and the breach. Upon the first count, therefore, if the evidence proved that the slave was hired by the plaintiff to the defendant, and while thus hired she died from the want of proper care, or from improper treatment, on the part of the latter, the plaintiff would be entitled to recover, without reference to the term of hire as stated in the declaration, or the allegation as to the amount to be paid; and upon the second count, if the duty and the breach were shown, it is enough. As to the charge of the court in relation to a recovery on the count in trover : If a slave is hired for a particular service, and is employed in one different from that contemplated by the contract, this is a conversion, and the owner may rescind the contract, or treat it as never existing, and bring trover (Hooks v. Smith, 18 Ala. 338); and in that action, he may recover the value of the slave, with interest from the time of the conversion, But, if he elects to pursue that course, he would not be entitled to hire, as such, after the date of the conversion. We have no decision going to that length; and as we have held, that the property may be changed by a recovery in trover, to give the party who has recovered in trover the hire accruing after the conversion, would be the same as to give him hire which accrued after he had sold the property to the defendant. The same rule must hold as to the converse of the proposition. The owner is not entitled to the hire for the full term, and damages which cover a portion of the same term; he cannot treat the contract as a sale and a bailment both; and if, with a full [417] knowledge of the conversion before the time of hire has terminated, he receives pay for the entire term, he, by this act, asserts his right to the hire which accrued after the conversion, and is estopped from maintaining any action which, from the rules which govern it, is inconsistent with the right thus asserted. As to'his right to recover in case for breach of duty, in which it might be competent for the jury, in ascertaining the injury, to look to the fact that he had received the hire for the entire term in mitigation of damages, as we do not consider the question presented upon the present record, we express no opinion. Judgment reversed, and cause remanded.