Reid v. Edwards

1. The rules for the construction of contracts, whether verbal, written, or under seal, are the same. All contracts are to be performed according to their legal interpretation, and where one undertakes expressly, for the performance of some act, the positive engagement casts upon him a duty, the discharge of which cannot be excused, by shewing his inability, by reason of the lawful interference of some third person. 2. Where one neglects to qualify his contract, so as to make such an excuse available, he waives it as a defence, against a recovery of damages for non-performance. 3. It is competent for a defendant to admit the legal sufficiency of the cause of action with which he is charged, and put the plaintiff upon proof only, of its existence in point of fact : and where this is done, and the issue found against the defendant — the legality of the contract is not open for revision.

Error to the Circuit court of Lauderdale. Assumpsit, before Judge Lane. This was an action brought by plaintiff below, on a special agreement, which was in substance this : The defendant held in his hands an execution offi. fa. against one ¡'bonns W. Edwards, in favor of Charles Whitaker, which was levied on a negro boy named Henry, in the possession of the plaintiff, as the property of Thomas W. Edwards. The defendant agreed, that if plaintiff would pay him the amount of the execution, he would return the boy to him on the bank of the Tennessee river, at Florence ferry. The declaration contained a special count, alleging that plaintiff had paid to defendant, the amount called for by the execution, in pursuance of their agreement, hut that defendant had failed to deliver the hoy as he had agreed to do: To which were added counts for money paid and expended, had and received. Plea, non-assumpsit. Verdict and judgment for plaintiff. The evidence disclosed, in substance, the following facts: That the defendant was acting as deputy sheriff, and in that capacity took the slave, which was in possession of plaintiff, to satisfy the aforesaid execution; that he received from plaintiff one hundred and sixty-eight dollars, the amount called for by the execution; and was to have delivered the hoy at Florence ferry, on the bank of the Tennessee river. The execution was by defendant returned satisfied; that, the slave was in jail, and that plaintiff and defendant were proceeding to the jail, to carry into effect their said agreement,- but the sheriff refused to deliver the slave, alleging that another execution in favor of a third person, against the said Thomas W. Edwards, had come to his hands, and that he must retain him to satisfy that execution: That the sale to satisfy this last execution was forbidden, and no bond of indemnity having been given, the boy was delivered to attorney of plaintiff, in the last mentioned execution. The bill of exceptions shews, that the court charged the jury, that if they believed that the defendant promised to deliver the boy at a particular place, in consideration of the payment of the money, he was bound to have done so, notwithstanding another execution might have been levied on the property by the sheriff himself - -whether it was liable to satisfy the execution or not. And that the execution which was levied by the sheriff in favor of the third person as aforesaid, and produced and read in evidence, must be excluded from their minds in making up their verdict. The plaintiff in error, assigned the instructions given to the jury as error. Peck, for the plaintiff, contended that defendant ought not to have recovered below, on the special agreement, because it was void, It was in derogation of the rights of the plaintiffs in execution: it was without consideration, and against public policy ; and to this effect cited 1 Johns. Cases, 284; 7 Johns R. 425; 15 Johns. R. 443. 2, The plaintiff below could not recover under the common counts, because the money received was in discharge of the execution, and so applied: consequently, the defendant was, and still is liable for the money so received, and should he be compelled to pay it in this form of action, would not be protected from paying it again on motion — (Chitty on Cont. 193; Chitty’s PI. 334, note 4; 7 Johns. R. 132; 8 T. R. 269.) Yerbal and written contracts have the same efficacy, properties and effects — (Chitty on Con. 1.) The construction of contracts, the same whether in law or equity — -nor are they varied by the circumstances of the contract being under seal — (lb. 19; 13 East, 74.) The tenant on a general lease is bound to repair, notwithstanding the premises were burnt — (6 T. R. 650; see also Hadley vs. Clark, 8 T. R. 151 — which is the Embargo case.)