Freeman v. Bass

• Decision Date: 30 June 1866
• Citation: 34 Ga. 355
• Parties: William Freeman, plaintiff. vs. Nathan Bass, defendant.
• Court: Georgia Supreme Court

34 Ga. 355

William Freeman, plaintiff. vs. Nathan Bass, defendant.

Supreme Court of the State of Georgia

JUNE TERM, 1866.

Complaint. In Bibb Superior Court. Tried before Judge Cole. May Term, 1866.

This was a double bill of exceptions, each party complaining of some of the rulings of the Court.

The action below was by Freeman against Bass, on a promissory note for $28,200, dated Arkansas, Chicot county, 5th of November, 1858, and due January 1st, 1862, with interest from January 1st, 1859, at the rate of eight per cent. Credits were entered upon the note as follows: October 21st, 1862, $6,850; July 6th, 1863, $4,000; August 14th, 1 863, $2,000; September 2d, 1863, $20,506 12.

This note was one of several given for the purchase money of a plantation, and certain negroes, stock, etc.

The defendant, by his pleas, sought to recoup against the plaintiff's demand, damages laid at $10,000, resulting, as was alleged, from the unsoundness of one of the negroes, named Mark Henry, the non-delivery of another, named Betty, the destruction and non-delivery of the stock of hogs, the negligence and want of care of the plaintiff in respect to the crop of corn and the horses and mules on the plantation, the nondelivery of carpenter's tools, some blankets and negro shoes, some osnaburgs, and some beds, mattresses, and household and kitchen furniture, the unauthorized consumption of provisions, and the failure of the plaintiff to apply the labor of the negroes to improving the plantation.

He also set up failure of consideration by the emancipation of the slaves, presenting this defence first by a plea of total failure, and then by a plea of partial failure of consideration.

The following documents, brought into the case at the trial, should now be described.

1. A bill of sale executed in the State of Arkansas, reading as follows:

" Know all men by these presents, that I, William Freeman, of the county of Barbor, State of Alabama, for, and in consideration of the sum of $73,000, have bargained, sold, and delivered, and do by these presents bargain, sell and deliver to Nathan Bass, of the county of Bibb, in the Stateof Georgia, and to his heirs and assigns forever, the following negroes, slaves for life, now being upon the plantation this day purchased by the said Bass from the said Freeman, situated in Chicot county, and State of Arkansas, to-wit: (here the negroes are described.) And for the consideration aforesaid, the said Freeman has also bargained, sold, and delivered to the said Bass the entire stock of mules, horses, cattle, and hogs, corn, fodder, wagons, carts, blacksmith tools, gins, cotton seed, household and kitchen furniture, ploughs, plantation tools, and all other property of a perishable nature, now being upon and belonging to the plantation this day sold by the said Freeman to the said Bass, lying in said county of Chicot, and State of Arkansas.

And the said Freeman, for himself, his heirs, executors, and administrators, doth hereby covenant to and with the said Bass, his heirs, executors, and administrators, that he has a good and perfect title to the property herein before mentioned and conveyed to the said Bass; that the same is free from all incumbrances done, had, or suffered by the said Freeman, and that he has full legal authority to sell and convey the same. And the said Freeman, for the consideration aforesaid, doth hereby guarantee and warrant unto the said Bass, his heirs, and assigns, that each and all of the negro slaves, excepting Louisa, a negro woman, aged about thirty years, and afflicted with palpitation of the heart, herein before mentioned and conveyed, are healthy and sound, both in body and mind. Witness my hand and seal, at Lake Village, this 5th day of November, A. D. 1858.

William Freeman, Sr. [l. s.]

2. A bond for titles, as follows, also executed in the State of Arkansas:

" Know all men by these presents, that I, William Freeman, Sr., of, etc., am held and firmly bound unto Nathan Bass, of etc., in the penal sum of $176,000, for the payment of which I bind myself, my heirs, etc., forever. In testimonywhereof, I do hereby set my hand and affix my seal, this 5th day of November, 1858."

Now, the condition of the above obligation is such, that the above bound William Freeman hath this day sold, and doth by these presents, grant, bargain, sell, and convey unto the said Nathan Bass, all these certain tracts and parcels of land, lying and being in the county of Chicot, and State of Arkansas, and known and described — (Here follows the description.) And, whereas, the said Bass hath this day purchased of me the following negroes, slaves for life, (describing them) being seventy-three slaves in all. Said sale of lands and slaves, as aforesaid, being for and in consideration of $161,000, to be paid as follows, to wit: $20,000 on the 1st of January, 1859; $28,200 on the 1st January, 1860; $28,200 on the 1st of January, 1861; $28,200 on the 1st of January, 1862; $28,200 on the 1st January, 1863; and $28,200 on the 1st January, 1864; which said six several sums are evidenced by the six several promissory notes of said Nathan Bass, all of even date herewith * * and all except that one due January 1st, 1859, are to bear interest from the last named date until paid, at the rate of eight per cent, per annum; and, to secure the payment of which said six several notes, a lien is hereby expressly reserved by the said William Freeman on the slaves herein named.

Now, should the said William Freeman, his heirs, etc., make or cause to be made a good and lawful deed, in fee simple, for the lands herein conveyed and sold * * upon final payment as aforesaid, then this obligation to be void, otherwise, to remain in full force and virtue. * * *

And I, the said William Freeman, for the considerations above stated, and for divers other good and valuable considerations, hereby promise and agree with the said Nathan Bass, to deliver him possession of the above described lands, slaves, and the other personal property this day sold to him, on the first of January, 1859, or sooner if the crops begathered. But it is expressly understood that the said Freeman does not agree to deliver said property in any case where he may be prevented from so doing by death, fire, or other casualty, not resulting from his own carelessness or negligence. William Freeman, Sr. [l. s.]

3. The exemplified record of an action of assumpsit, predicated on that note described in the foregoing bond which fell due January 1st, 1860, commenced by Freeman against Bass on the 27th of January, 1860, in the District Court of the United States, for the Southern District of Georgia, and prosecuted to judgment in the corresponding Court of the Confederate States, at January term, 1862.

The declaration stated on its face that the plaintiff, Freeman, was a citizen and resident of the State of Texas; and at June term, 1861, the defendant demurred to the jurisdiction, on the ground, that by the constitution of the Confederate States, the Court had no jurisdiction, the plaintiff being a citizen and resident of the Confederate States. The Court overruled the demurrer, and likewise dismissed a plea presenting the same defence.

The cause afterwards, at January term, 1862, came to trial on sundry pleas to the merits. These were, 1. Non-assumpsit. 2. Failure of consideration, because of the unsoundness of one of the negroes, named Mark Henry, and the non-delivery of another, named Delia; also, the non-delivery of mules, horses, cattle, hogs, carpenter's tools, household and kitchen furniture, etc. 3. Partial failure of consideration on the same facts, with the addition of the plaintiff's failure to employ the negroes in clearing land and improving the plantation, and his unauthorized consumption of provisions. 4. Set off, embracing a claim for the value of the unsound negro, and of all the property enumerated in the preceding pleas as undelivered, and of some besides.

The jury found for the plaintiff $27,165, with eight per cent. interest on the note, from the 1st of January, 1859, and judgment was entered up accordingly.

4. A bill in equity, filed by the plaintiff, Freeman, against the defendant, Bass, in Bibb Superior Court, in April, 1863, with an injunction restraining Bass from selling any of the negroes described in the foregoing bill of sale and bond for titles, that might be in this State; the bill praying for the foreclosure of the plaintiff\'s alleged mortgage on said negroes, (evidenced by his reservation of lien, contained in the said bond for titles) to satisfy the note upon which the present suit is founded, and the three others which fell due next after it, as well as for injunction to prevent a sale of the negroes by defendant.

These documents being sufficiently described, what transpired at the trial will now be stated.

The plaintiff read his note, with the credits thereon, and closed.

The defendant introduced certain evidence taken by interrogatories. The plaintiff objected to the answer of a witness, Davis H McElroy, to one of the interrogatories propounded to him, and the Court sustained the objection and ruled out the answer. This interrogatory and the answer to it were as follows: Int. 16—"Did or not Freeman, in the trade, agree to let his slaves not sold and these that were sold, work clearing land, and whilst not clearing land, gather the crop, till time of delivery, and did they thus work; and if not, what was the damage." Answer.—" Freeman, the plaintiff, agreed that the negroes sold to Bass, as well as these not sold, which was about twenty-five hands in number, when not employed in saving the crop, should be clearing land for the defendant Bass, so long as they remained on the place. There was a considerable portion of the time in which they were not employed in saving the crop, nor were they employed in clearing land for defendant, but were idle and an expense, as they were supported by the provisions on the place. After the crop was...