Grier v. Wallace

The opinion of the Court was delivered by Wright, A. J. This action was brought on a promissory note given for balance of purchase money of slaves which were sold to Robert Whitesides in 1846, by R. C. Grier, now deceased, who left a will, of which the appellant was appointed executor. At the time of purchase Whitesides paid a portion of the purchase money, and executed and delivered to R. C. Grier his note for the balance due. [184] On the eighth day of January, 1858, the said Whitesides took up the note of 1846, and gave in lieu another note, with the respondent, Wallace, as surety upon the same. This action is brought against the surety. It appears that Robert Whitesides purchased five slaves for the sum of $1,750, and paid in cash a portion of the purchase money. That some time the same year of the purchase, he sold two of the said slaves, Julia Ann and Aggy; and in 1857 or 1858 he sold the slave John for the sum of $1,200. It is clear that Whitesides realized more than the amount of money he paid for the slaves, and was satisfied with his bargain; for if they had been so unsound as to cause him loss by the purchase, he had a remedy by moving to rescind the contract, which remedy he did not resort to, but sold the slaves he desired and retained the others. The first ground of appeal is the only one necessary to consider to dispose of all upon the record and to fully determine this case. Whitesides is estopped now from inquiring into the condition of the slaves at the time of their purchase for two reasons — first, because he disposed of the slaves, or a portion of them, thereby giving assurance that satisfaction had been rendered by the contract of purchase; and, secondly, by giving a new note for the old one, twelve years after the purchase, with the respondent, Wallace, as surety upon the same, thereby acknowledging the former transaction as a valid one, and the consideration as a good and valuable one by a higher guarantee, to wit: security in case of failure on the part of the principal. This was a new contract, the former note having been parted with as it was extinguished.— Chastain vs. Johnson, 2 Bail., 574; Doogan vs. Ashley, 1 Rich., 37; Gardiner vs. Hust, 2 Rich., 608. The principal in this case having failed, the surety must be held bound. As to the remarks of the presiding Judge, “that the policy of the law or the decisions of the Courts overriding the ■ Constitution and enforcing the collection of negro bonds was bad and unfortunate, and. would not likely be law long,” it is only necessary to say that this Court, and also the Supreme Court of the United States, have decided such debts are collectable, and we do not regard it consistent with the duty of a Judge, who is bound to administer the law as it is announced by those who, under the Constitution of the United States and of this State, are vested with the right of expounding it, knowingly so to charge a jury as to [185] impress them with a right on their part to return a verdict contrary to law. The motion for a new trial is granted. Moses, C. J., and Willard, A. J., concurred.