Ellett v. Bobb

• Decision Date: 31 May 1840
• Citation: 6 Mo. 323
• Parties: ELLETT v. BOBB.
• Court: Missouri Supreme Court

6 Mo. 323

ELLETT

v.BOBB.

Supreme Court of Missouri.

May Term, 1840.

ERROR TO THE CIRCUIT COURT OF ST. LOUIS COUNTY.

GAMBLE, for Plaintiff in Error. The contract in this case being expressly to pay the money and return the slave, the obligor must perform his contract. Chitty on Contracts, 273; Comyn on Landlord and Tenant, 113.B. ALLEN, for Defendant in Error. It is insisted on part of defendant in error, that the demurrers were rightly overruled. Wheeler's Law of Slavery, pages 152-3-4-5-9. Story on Bailment's, 225-250-9, 274; Boyce v. Anderson, 2 Peters' R. 150; Chitty on Con. 273; Story on Bail. 265, 263, 269, 273.

TOMPKINS, J.

William R. Ellett brought his action against Charles M. Bobb in the Circuit Court of St. Louis county, where judgment being given against him, he brings the case into this court to reverse the judgment. Ellett, in his declaration, states, that the defendant, on the second day of January, 1837, made his certain agreement in writing, by which he promised to pay the plaintiff, on or before the 25th day of December then next, the sum of one hundred and sixty-five dollars and fifty cents, for the hire of a negro boy; and that the said defendant, by his said agreement, further promised the said plaintiff, that the said negro should be returned to the plaintiff on the said 25th day of December; and then the plaintiff assigns as a breach, that the defendant had not paid the said money, or any part thereof, and that he had not returned the said negro to the plaintiff. To this declaration the defendant pleaded, that on the 5th day of May, 1837, without any fault of the defendant, the said negro ran away, and did not return to the said defendant before the 25th day of December, or any time since, &c., and also, as to the breach of the said agreement in not paying to the plaintiff the said sum of money, that he did not undertake and promise, &c., and as to the breach of the agreement in not returning the said negro, that the negro ran away as in the first plea stated. To these special pleas the plaintiff demurred, and the court sustained the pleas demurred to. On the part of the plaintiff it is contended, that when, by his own special agreement, the defendant undertakes to do an act, it is his own fault if he does not provide against contingencies. As in the case of an express contract to repair generally, made by a tenant, he is bound to repair though the building by destroyed by fire. On the part of the defendant in error it is contended...