Jemison v. McDaniel

Mr. Justice Yerger delivered the opinion of the court. The verdict of the jury in this case was clearly against the law and the evidence, and a new trial ought to have been granted. The proof is, that the note sued on was given, with another of the same amount, for the rent of a warehouse be [86] longing to plaintiff in error, from the 1st of October, 1846, to 1st October, 1847. That defendants took possession of the warehouse and remained in it until the spring of 1847, when they abandoned it, because the gable ends had fallen down, in consequence of injury from high water. This fact constitutes no defence to the note. Where a party, by his own contract, engages to do an act, and does not provide against contingencies, and exempt himself from liability in certain events, he is not, in the instance of an absolute and general contract, excused from its performance by an inevitable accident or other contingency, although not foreseen by or within the control of the party. Chitty on Cont. 567. The evidence in the case negatived the idea, that the plaintiff had agreed to receive the premises, on their abondonment by defendants, and leased them out to another, to take effect before the expiration of defendants’ lease. P. B. Calhoun, the agent of the plaintiff, who leased the premises to Williams in the fall of 1847, says, that he did not intend, and in fact did not put Williams in possession, before the expiration of McDaniel’s term; and that he told Williams he must get McDaniel’s permission before he took possession. Let the judgment be reversed, and a new trial awarded.