Hammut. Johnson v. Hwatson

• Decision Date: 31 March 1846
• Docket Number: No. 56.,56.
• Citation: 1 Ga. 348
• Parties: Hammutual Johnson, plaintiff in error. vs. Arthur H.Watson, defendant in error.
• Court: Georgia Supreme Court

1 Ga. 348

Hammutual Johnson, plaintiff in error. vs. Arthur H.Watson, defendant in error.

No. 56.

Supreme Court of the State of Georgia

MARCH TERM, 1846.

For the facts of the case, and the error assigned, see the opinion of the Supreme Court, delivered by his Honor, Judge Lumpkin.

Judge Warner, having been of counsel for the plaintiff in error, in the court below, delivered no opinion in this case.

Obadiah Warner, for the plaintiff in error.

The first ground of error assigned is. that the court below committed error in not awarding a nonsuit in the cause, upon motion of counsel for plaintiff in error, made alter the plaintiff in the court below had closed his testimony. From the evidence of the plaintiff in the court below, upon which he relied for title to the property in dispute, he had no right to recover.

His right to the property depended entirely upon the contract between the parties; that contract was void under the 4th and 17th sections of the statute of frauds. —Hotch. Dig. 436.

1st. If the consideration of the contract was, that the plaintiff below should go to Macon, and bring to defendant her negroes, which were there and to Columbus, and procure her runaway negro, and to attend to the business of Mrs. Johnson tor awhile, as testified to on the part of witness, Walton, as being the consideration of the contract of sale, then the contract was void under the 17th section of the statute of frauds—the goods (the negro) being of the value of more than ten pounds, there being no earnest money paid, no acceptance of the goods by Watson, or delivery of the negro to him, nor any memorandum in writing of the contract.— See Bennett vs. Hull. 10 John. Rep. 364; 6 Wend. 139; Howe vs. Palmer 5 Eng. Com. L. Rep. 303; Ibid. 419.

It seems to have been admitted by the court below, that there was no earnest money paid, and no delivery of the property, when the contract was made, so as to take it out of the statute.

2d. It the right of Watson to recover the property depended upon that portion of the contract, by which he was to attend to the business of Mrs. Johnson for two years, and then to have the negro, he must fail, because that portion of the contract was void under the 4th section of the statute of frauds, being a contract not to be performed in one year. The agreement was made in the first part of the year 1840 Watson was to attend to the business of Mrs. Johnson for two years, for the negro in dispute. Watson, by the terms of the contract, could not have performed it within the year.

It is admitted, that if the contract may he performed within the year, it is notwithin the statute. But in the present ease, by the express terms of the contract, it could not be performed until after the expiration of two years.

As to contracts not to be performed in one year, see Shute vs. Dorr, 6 Wend. 204; Lower vs. Winters, 7 Cowen, 263; Fenton vs. Emblers, 3 Burr. 1278; Burch vs. the Earl of Liverpool, 17 Eng. Com. L. Rep. 404.

The contract between the parties, it is true, was an executory contract.—2 Kent Com. 449-450. The services were to be performed by "Watson. The statute applies as well to executory contracts as to contracts executed.—-Bennett vs. Hull, 10 John. 364.

3d. But the contract was an entire contract, based upon the two foregoing considerations. Being an entire contract upon two considerations, if one was good in law, and the other void under the statute of frauds, the whole contract is void.

Admitting there had been earnest money paid, or a delivery of the property, at the time the contract was made, so as to have supported a part of the consideration in law, yet another part of the consideration of the same contract being obnoxious to the statute, the whole is void. Upon this point, see Van Alstine vs. Wim pie, 6 Cowen, 162; Crawford vs. Morell, 8 John. 253; Chafer vs. Beckett, 7 Term. Rep. 201.

4th. The contract, then, was wholly void under which Watson claimed title, and therefore no property passed to him by virtue of it.—2 Greenleaf, Ev. 197.

If the contract was void, then no subsequent ratification or recognition of it, on the part of Mrs. Johnson, could make it void.

The original contract not being binding upon her, it could not form the basis of a new promise or ratification on her part.— Smith vs Ware, 13 John. 257; 1 Atk. 354; 8 Cowen, 361.

The contract of an infant, originally void, cannot be ratified after he comes of age, though a contract merely voidable may be ratified.—2 Kent. Com. 334-335; 2 Swift's Dig. 82; 1 Story Com. on Eq. 303-338.

The doctrine of part performance does not apply, because that doctrine is not applicable to this branch of the statute, and relates only to contracts respecting real property.—1 Swift's Dig. 263. 0. Justice Kent, in Jackson vs. Pierce, (2 John. Rep. 223) said ''that a court of taw has never decided that a part performance will take a parol contract in relation to land out of the statute."

5th. A writ of error lies for not awarding a nonsuit, when the plaintiff's evidence fails to support his case.— Foot vs. Sabin, 19 John. 154; Pratt vs. Hull, 13 John. 834; Turnbull vs. Rivers, 3 McCord, 131; Parnell vs. Wilson, Dud. ley's Law and Equity Reports, 371. The true test of the propriety of a nonsuit is, that if the case had j;one to the jury on the evidence, and a verdict had been found for the plaintiff, the court would have set aside the verdict.— Graham on N. T. 280; 8 Mass. Rep. 336.

The court below then committed error in not awarding the nonsuit moved for.

The second ground of error assigned is, that the court below refused to charge the jury as requested by the counsel for the plaintiff in error.

The charge requested was a proper and correct one upon the facts. It is true, that the court does say in its charge, "that if the plaintiff, Watson, was pro secuting his claim under the contract, that claim would be obnoxious to the statute of frauds. The court, instead of responding directly to the request ocounsel to give the charge we deemed ourselves entitled to, under the lawf goes rarther, and instructs the jury, "that the principles contended for by defend, ant's counsel may not apply to the case." It is true, also, that the court says inits charge, that the principles contended for by defendant's counsel are founded in rules of law, recognized by the court, when a case arises for their application. The inference properly drawn by the jury, in relation to this part of the charge, undoubtedly was, that they, in making up their verdict, were not necessarily to be governed by these principles of law, because not necessarily applicable to the case. The charge requested made these principles of law applicable, and the court was asked to apply them to the case. Now, if these principles of law, embraced in the charge requested, were applicable to the case then before thecourt, there was error in not giving them their proper and full application to the facts when requested by counsel. We think that it has already been shown, that they were not only applicable, but that the title of Watson wholly depended upon them.

The principles of law requested to be charged, made the contract void at all events, and entirely defeated Watson's right to recover. The charge given made it void, or not void, upon a contingency, which the jury might believe had or had not happened, to wit, the subsequent act of Mrs. Johnson, and depending upon their opinion, as to the existence of these subsequent acts.

The court below says, in its charge, ''that there is some evidence establishing the recognition of the title in the plaintiff to the property, and that after the contract, which the plaintiff shows as evidence of his title after her hire was out, she was seen in the possession of the plaintiff.

Now, this possession was one of the subsequent acts of recognition, referred to in the charge, which must have conveyed to the mind of the jury the idea that the contract was not void, if subsequently recognized or ratified by the acts of Mrs, Johnson. The inference the jury might properly draw from the charge was, that though the contract might be void, yet it was capable of ratification subsequently, and was made binding upon Mrs. Johnson by her subsequent acts. As to the duty of the court to charge the jury, as requested by counsel, see 4th Ala. Rep. (N.S.) 116; 6 Stewart and Porter, 330; 2 Con. Rep. 590.

The exchange of negroes was made before the two years expired. The exchange of itself could not amount to a sale, for Mrs. Johnson was receiving Jerusha "for a while, " to whom she had never parted title; and her statement, that it was only "for a while, " (meaning thereby that Watson should again have possession of her) was not such an act as would by itself divest Mrs. Johnson of her title.

The original contract being void, the parties stood in the same condition,.so far as any right accruing under it, was concerned to either, as if it had never been made. Mrs. Johnson was under no legal obligation to send the negro back to Watson. The title was in her before the exchange, and that could not amount to an absolute sale, for there was no consideration for her promise, (it her statement amounts to one,) to send Jerusha back to Watson "after a while." It could not operate as a gift, for a gift must be expressly proven to bo such, and a delivery under and by virtue of the gift. Nothing was proven, going to show that a gift was intended by either party.

As to the third ground of error—

The contract, if it had been valid, conferred no title on Watson. It was only a contract to sell, and not a sale itself. There is a distinction between a contract to Bell, and an absolute sale.—13 Mass. Rep. 87. The remedy of the defendant in error, if he had any, (supposing the contract valid) was by an action for a breach of the contract.

W. D. Alexander, for the defendant in error.

Referred to Cooper vs. Elston, 7 Term Rep. 14; Gadsden vs. Lance, 1 McMulten's Eq. Rep. 87; 2 Bailey 615; 5 Cowen's Rep. 445; ...