Pointer v. Smith

• Decision Date: 06 January 1872
• Parties: SAMUEL A. POINTER v. SIDNEY P. SMITH.
• Court: Tennessee Supreme Court

54 Tenn. 137

SAMUEL A. POINTER

v.SIDNEY P. SMITH.

Supreme Court of Tennessee.

Jan. 6, 1872.

FROM WILLIAMSON.

Appeal from the Chancery Court, October Term, 1869. JOHN C. WALKER, Ch.

JESSE G. WALLACE and T. W. TURLEY for complainants.

N. N. Cox and JOHN C. THOMPSON for defendant.

FREEMAN, J., delivered the opinion of the Court.

The bill in this case was filed by Pointer to recover the hire for 1864 of certain negroes, alleged to have been received by Smith as agent in charge of said negroes in the State of Alabama, and invested in cotton.

The facts necessary to be stated, in order to raise the questions presented for our decision, are, that in 1863 the negroes of Pointer had been hired to Noble and Bro. in Alabama for that year, and that in February, 1864, they came into possession of Smith, who undertook their control and management, in pursuance of a letter written by Pointer to said Smith, dated January 27th, 1864. There is some controversy as to whether Smith had taken charge of the negroes of his own accord before receiving this letter, but on careful examination of the testimony and all the circumstances developed in the case, we feel no hesitancy in coming to the conclusion that the negroes were taken charge of in pursuance of the request contained in this letter.

This letter was written while Pointer was within the Federal lines of occupation, at his home in Williamson county; and sent through the lines by one George B. Hunter.

There is some discrepancy in the proof as to the date of the sending, but the letter is proven by Hunter to be the one exhibited in the record as “Ex. A,” and is of the date above stated.

From that letter it appears, as is shown elsewhere, that Pointer had been informed that Smith had become a member of the firm, as he expresses it, of Noble, Bro. & Co., and as the negroes were in their employ at their furnace, Pointer expressed himself as much gratified at the fact, as Smith was his ““friend and neighbor,” and his negroes would be in safe hands. He then says, “I place my negroes in your hands with the utmost confidence that you will do for me what you do for others--that is all I ask. Watch the movements, and run my negroes; hire them out, sell them, and invest in cotton or anything else, as your discretion may dictate, for I would not give nine dollars a dozen for all the negroes in Tennessee as they are.”

He then goes on to give some advice to the negroes themselves by way of preventing a desire on their part to run away; and tells Smith to give them “whatever they want in reason, and charge all extras to me.” He says, “I do not want my negroes sold except in an extreme case,” but advises they be run whenever necessary, and all expenses and travel charged to him, and “I shall only expect you to give me the same hire you give others; in other words, what you think is right.”

Smith got the negroes from Noble Bros., by the assistance of Capt. Ed. Pointer, a nephew of complainant, and hired them to Claybough & Co., at Talladega, Alabama, about last of February or early in March, 1864, for the sum of $4,500, the hirers to pay for clothing, etc., or clothe them; but afterwards, owing perhaps to failure of Claybough & Co. to clothe them, it was agreed they should pay $3,000, or about this sum, for this purpose, to Smith, and he should clothe them.

Smith, in his answer to the original bill, admits that he received enough Confederate money from Claybough & Co. under this agreement “to cover the shoe and clothing bill for the negroes,” but denies that he ever received anything else from Claybough & Co. for the Pointer negroes; yet, in his answer to amended bill, after stating the agreement to pay the $3,000, he says he purchased clothing out of his own funds for said negroes, amounting to about $2,500, and that “Confederate money was of greater value at this time than ever after that;” and this after affirming by reference to them all the statements of his previous answer.

Two leading questions are presented in argument, and raised by the record in this case, together with several minor ones, to which we may incidentally allude in this opinion. The first is one of law, the other of fact mainly.

The leading question of law presented is, that, as Pointer was a resident at the time of writing the letter referred to, within the Federal lines in Williamson county, Tennessee, and Smith, at the time within the Confederate lines, in the State of Alabama, though both citizens of the State of Tennessee; all communication or intercourse between the parties was illegal, contrary to the law of nations, and consequently the appointment of Smith as agent was void; and no liability to account for any money that might have been received for the hire of the negroes can be had in any court; on account of this illegal element entering into the transaction.

We have given the question in this form considerable investigation, but in the view of the case we have taken, it is not necessary authoritatively to decide it. We may say however in passing, that it would be exceedingly difficult successfully to maintain the proposition, to the extent insisted on, as applicable to our late civil war; complicated as it was, by being a war of the Government of the United States, waged against a portion of the States, claimed to be part of, and subject to the sovereign rights of, the General Government, when taken in connection with the attitude or relation assumed by the United States by the act of Congress of 1861, and the proclamation of President Lincoln, in pursuance of the act of Congress mentioned. The United States Government at first assumed belligerent attitude towards the States engaged in insurrection, with all its consequences, forbidding all intercourse between the loyal States and States engaged in the rebellion, but expressly excepted from the operation of this rule such parts of the insurrectionary States as “from time to time should be occupied, and controlled by national forces engaged in the dispersion of the insurgents.” This clearly went on the principle, that the country thus occupied, had been restored to its normal condition, so far as trade and intercourse were concerned, by virtue of such occupation and control of the country by the national forces, and in this respect, it seems to us, changed the enemy relation existent before the occupation; and which was declared to exist by the proclamation, to that of friendship and amity. But afterwards this policy was changed, and by the proclamation of March 31, 1863, it was assumed, “that experience had shown that the exceptions made in the former proclamation embarrassed the due enforcement of the act of 1861, for the suppression of the rebellion, and therefore the rule was changed, and, Tennessee with other States declared in insurrection were excluded from the benefit of the exceptions in the first proclamation, certain exceptions being retained in favor of West Virginia, New Orleans, and several other places, then permanently occupied by the Federal forces; and all commercial intercourse was forbidden between the other parts of the United States, and these States, except under license as provided by act of 1861, and such intercourse so remained unlawful until the insurrection should be suppressed or cease, and notice thereof be given by proclamation of the President of the United States. Taking these two proclamations together, it seems to us that the last wiped out the exception of the enemy relation, which the Government of the United States had chosen to make between the insurgent States and the other States, and went on the principle that these States and their inhabitants were enemies until the insurrection should cease or be suppressed, and then that fact be announced by proclamation of the President.

In fact, the state of war was understood to exist by the Federal Government, de jure, if not as a matter of fact, till the proclamation of President Johnson announcing the fact of peace in June, 1865.

This being true, Tennessee in 1864 was but the enemy's country in occupation of the conqueror, and was subject only to such regulations as the conqueror might by the law of nations prescribe; that is, the military commander could make such military regulations as military prudence might dictate, and enforce such enactments by military penalties inflicted by military tribunals, or at his discretion might organize and establish temporary civil machinery adapted to the circumstances and to meet the emergency, by which order might be enforced, and due subordination maintained among the people. In fact, the President of the United States, as commander-in-chief of the army of the United States, and by virtue of the war power alone, did appoint a Military Governor for the State on the principle stated, but the whole was military power, not civil government, based on assumed occupation of the enemy's territory. In this view of the case, it is a serious question as to whether the people could be held as both enemies and friends to each belligerent party; for the rule of non-intercourse is based solely on the enemy relation;--that they should be forbidden commercial intercourse with either belligerent, by virtue of this rule, would be hard to maintain on sound principle.

We might advert to a number of other considerations in maintenance of these views, and support them by authority of decided cases; but we do not deem it called for by the case that we should definitely settle this question at present.

We think the view of this case which avoids this necessity is, that this bill is not for an enforcement by the one party, as against the other, of this contract, nor for damages for non-performance of it. In such case the illegality of the contract might well be interposed as a defense. The question is not the enforcement of the contract of agency, but whether a party who had acted as agent, whether legally appointed or otherwise, can...