Harmon v. Fleming

Mr. Justice Yerger delivered the opinion of the court. The record in this case presents a single point for consideration. It is not entirely free from difficulty, and is of considerable importance. It is this: Where a slave is hired for a specific time, at a fixed price, and dies before the expiration of the time; can the owner recover the whole price from the hirer, or only a pro tanto price for the period the slave lived ? The decisions of the American courts upon this point have not been uniform; and, should we attempt to decide it by precedents derived from them, it would be extremely difficult to reach a satisfactory conclusion. [140] In Virginia, in the case of George v. Eliott, 2 Hen. & Mun. 6, the court held, that the general owner, and not the hirer, if the slave died without any default in the hirer, should lose the hire from his death, unless otherwise agreed upon. In South Carolina, in the case of Bacot v. Parnell, 2 Bailey, R. 424, a similar rule was laid down. ,, So also in the State of Missouri, it is held that the general owner, and not the hirer, must lose the hire from the death. Dudgeon v. Tenas, 9 Mis. R. 867. While such have been the decisions in the above named States, the courts in several other States have arrived at a totally different result. In Alabama, in the case of Ricks’s Admr’s v. Dillahunty, 8 Port. R. 134, the court, after a very elaborate .examination, announced their opinion in the following language: “ The hirer of a slave for a definite period becomes his purchaser for the time agreed on ; and if he dies before its expiration, the loss of service must be borne by the hirer, who, if sued on his undertaking to the owner, cannot resist a recovery by showing that the act of God prevented him from deriving a profit from his contract, unless by its terms it provides for such a contingency.” In the State of North Carolina, a like rule has been established on this subject. Williams v. Halcombe, 1 Carolina L. R. 365. And in Kentucky, that very sound lawyer, Judge Owsley, delivering the opinion of the court, declared, “ that as the uncertainty of the negro’s life was equally known to both the general owner and the hirer when the contract for hire was entered into between them, it was not unjust in the owner to exact the full hire of the negro. With that knowledge, it was competent for them to contract in the way most acceptable to themselves; and when fairly made, the court possesses no power to alter or change the import of the contract.” 5 Mon. R. 359; 1 Bibb, R. 536. In Tennessee, the rule has been established in the same way. 3 Hayw. 224; 9 Yerger, R. 45. While such have been the conflicting adjudications of these different States upon this question, it is worthy of remark, that the courts in those States which have discharged the hirer from payment of hire after the death of the slave, have nevertheless [141] declared, that he is compelled to pay for the time that the slave hired by him is sick, and also for medical attendance and physicians’ bills during the same -period. See George v. Eliott, 2 Hen. & Mun. 6; and Wells v. Kennedy, 4 McCord, R. 122. In the last named case, the court-declare that the general owner is not liable for the doctor’s bill, either by the rules of law or the policy of the country, and-the hirer has no more right to throw the expenses of the negro’s sickness upon the general owner, than to demand an abatement of the price of hire during the sickness. To our minds, the decisions in Virginia and South Carolina on these two analogous questions seem irreconcilable. We think it difficult, if not impossible, to draw any distinction in principle between the right of-a hirer to demand an abatement in price for the loss of the slave’s services occasioned by death, and his right to demand a like abatement for the loss of services occasioned by sickness. It will thus be seen, that if we attempt to base our opinion upon the precedents afforded by the American courts, we would be left in a state of extreme'doubt and uncertainty as to the true rule to be established. Whatever rule may be established, will bear hardly upon one or .other of the parties to this suit. Both are innocent; and if there were any way of extricating all from loss, it would be gratifying to the court. But as this cannot be, “ we must,” in the language of Lord Kenyon, “ in such a situation, explore our way as well as we can; but we must determine according to the principles of law.” By the terms of this contract,, the defendants undertook to pay the plaintiffs a certain sum of money. The consideration of that, contract was the hire of certain slaves to the defendant for a. specific time. The slaves were hired for the time, and delivered to the defendant. The plaintiff, then, has performed that portion of the contract which he was bound by law to perform ; and on his delivery of the slaves to the defendant for the time fixed, the defendant received the consideration stipulated for by the contract, and became liable for the price agreed upon; . Was there any contract or agreement on the part of the [142] plaintiff to warrant the slave’s life during the period of his hire ? If it exist at all, it must be by legal implication, as there is no express warranty. On this point it may be remarked, that no principle of the common law is more clearly established than this, to wit: on the sale of a chattel, the law does not raise a warranty of soundness by implication; on the contrary, if the chattel prove unsound, the purchaser has to sustain the loss, in the absence of an express warranty, or of fraudulent concealment or misrepresentation of the facts. This rule, so applied to the sale of chattels, we think equally applicable to a case of hiring. The title which a hirer and a purchaser of a slave acquires, is a legal title, differing only in the duration of the estate; and the rights and obligations acquired and assumed must be regulated by the same rules in each instance. 9 Port. Ala. R. 72. It is said, if the slave die before the expiration of the term for which he is hired, the hirer ought not to be compelled to pay, because it is a maxim of the common law, that the act of God works injury to no one. We recognize the full force of this maxim; and in coming to the conclusion we have, to wit, to enforce the contract as made by the parties, we give full force and operation to the maxim. To declare that the defendant should be relieved of the hire on account of the death of the slave, in the absence of an agreement to that effect, would violate the maxim, by throwing upon the plaintiff damages resulting from a loss not occasioned by any default upon his part, and which he had not agreed to sustain. Under such circumstances, we think the law should stand indifferent between the parties, and enforce the contract in the terms made by them. We find the common law rule, on this subject, stated in the following manner : “ Where the law casts a duty on a party, the performance shall be excused, if it be rendered impossible by the act of God. But where a party, by his own contract, engages to do an act, it is deemed to be his own fault and folly, that he did not thereby expressly provide against contingencies, and exempt himself from liability in certain events ; and in such case, therefore, that is, in the instance of an absolute and general contract, the performance is not ex [143] cused by an inevitable accident or other contingency, although not foreseen by, or within the control of the party.” Chitty on Cont. 567, and cases cited. Applying this principle to the .case before us, we are compelled to decide against the validity of the plea. When the contract of hire was made, both parties knew that the slave was subject to the casualty of,sickness and death, before theexpiration of the term for which he was hired; and as the defendant did not stipulate for .an abatement of price in the event of his death, we do not think he has any legal right to demand an abatement, in the absence of such a contract. Since this opinion was prepared, our attention has been called to a case decided in Georgia, in accordance with the views expressed by us. Sumard v. Boynton, Georgia R., January Term, 1852. Judgment affirmed.