McMahan v. Miller

• Decision Date: 31 January 1880
• Citation: 82 N.C. 317
• Court: North Carolina Supreme Court
• Parties: D. A. MCMAHAN v. W. O. MILLER, Adm'r of A. T. Miller.

82 N.C. 317

D. A. MCMAHAN

v.W. O. MILLER, Adm'r of A. T. Miller.

Supreme Court of North Carolina.

January Term, 1880.

CIVIL ACTION for Damages for breach of contract tried at Fall Term, 1879, of TRANSYLVANIA Superior Court before Graves, J.

Verdict and judgment for plaintiff, appeal by defendant.

The plaintiff was not represented in this court.

Mr. James H. Merrimon, for defendant .

DILLARD, J.

The plaintiff became lessee to defendant's intestate of a tract of land for the year 1877 under a written lease, executed to him by the lessor which is referred to in the complaint and offered to be produced, or a copy thereof, whenever required.

The facts constituting the plaintiff's cause of action are that he entered on the premises and did work of considerable value in and about preparations for a crop, and that defendant was to have furnished him a horse or mule and all necessary tools to make a crop, and also to furnish and haul upon the land, lime to manure the land at the rate of twenty bushels per acre, and that defendant drove him off the land whereby he was damaged as to the work already done and in respect of his disappointment in making a crop for the year.

The defence set up by defendant is, that he executed a written lease signed by himself only, and that there were terms of the lease for performance on the part of the plaintiff not mentioned therein, and while not denying that the lime was to be hauled on the land by him as alleged, he averred that it was agreed that plaintiff was to burn the lime at the kiln, and he failing to do so, the defendant therefore could not perform the contract of hauling on his part; and as to the plow-horse to be furnished, defendant (not denying that the horse was to be furnished) alleged that it was stipulated that plaintiff was himself to work the horse, and not another, and he denies that he drove the plaintiff from the premises and prevented him from making a crop.

It is thus seen that the controverted facts material to the decision of the action were as to the duties of burning the lime by plaintiff so as to have it ready to be hauled by defendant, and as to the use of the horse by plaintiff in person, (and not by another) which are alleged by defendant to be terms of the contract on the part of the plaintiff not contained in the written lease, and denied by plaintiff.

If these were duties resting on plaintiff, they were a material part of the contract, and if he failed and refused performance in these respects and then left the premises, he could not, being in default himself, recover for any work he had done, or for any alleged breach on the part of defendant. This rule is founded on honesty. A party to a contract cannot wilfully be in default himself in the performance of matters material on his part, and then abandon the contract and turn round and have action to recover for what he may have done or for a breach of the other, caused by his own conduct. To allow this to be done, is to allow one to do wrong himself in the first instance, and then to take advantage of it by a recovery for a breach by the other party, induced and brought about by his own act.

If, however, these duties were not owed by plaintiff, but defendant was himself to burn and haul the lime on the fields, and also to furnish a horse to cultivate the farm without any restriction to be used by the plaintiff alone, and the defendant, on pretence of these terms, refused to furnish the lime and the horse, they were necessary parts of the contract, and his default in these respects authorized the plaintiff in law, if not driven out, to hold the contract as abandoned by defendant, and to sue to recover damages for what he had done, and his losses occasioned by the default of the defendant. Dula v. Cowles, 7 Jones, 290; Winstead v. Reid, Busb. 76, and notes to Cutter v. Powell, 2 Smith's Leading Cases, 13.

With a view to ascertain how these controverted facts were, His Honor submitted issues to the jury...