Robinson v. Varnell
| Decision Date | 01 January 1856 |
| Citation | 16 Tex. 382 |
| Parties | JACOB ROBINSON v. WILLIAM M. VARNELL. |
| Court | Texas Supreme Court |
It would seem that the court will not, of its own motion, order a certiorari to perfect the transcript, although the appellant has appeared by brief only, and the omission has escaped the notice of his counsel; at all events, where it is apparent that it would make no difference in the decision of the cause.
A mere omission in one part of the charge of the court, if supplied, substantially, in another part, is not sufficient ground for reversing the judgment, where there is no cause to apprehend that the jury may have been misled, or failed to comprehend the law.
Nor, where the charge given was not wrong in point of law, will it, in general, be a ground for reversing the judgment, that it did not embrace all the law applicable to the case, if proper instructions have not been asked and refused.
Where, to construe the terms of a statute according to their technical significations would render the statute inoperative, but to construe them according to their general signification would give the statute a reasonable operation the latter construction must prevail.
“Actions of debt, grounded on any contract in writing,” which are required by the statute of limitations of 1841 to be commenced within four years, include all suits brought to recover money for the breach of a contract in writing, without regard to the technical distinction between actions and suits, and debt and damages at common law.
Where the hirer of a slave contracts in writing to return the slave at a particular time, a suit for damages for failure to return the slave is not barred until four years after the expiration of the time appointed, although the slave may have perished, by the fault of the hirer, more than four years before the institution of the suit.
Where the hirer of a slave cruelly treats and abuses the slave, causing him to run away, and the slave is lost, the hirer is responsible for the value of the slave.
Where a slave is hired for a specified time, and during such specified time is lost by the fault of the hirer, and the suit is not brought until after the expiration of the time, the measure of damages is the amount of hire for such specified time, the value of the negro before his loss, and interest on those two sums from the time when the hire was due and when the slave was to be returned.
The measure of damages is, in general, that which will compensate the plaintiff, as nearly as may be, for the actual injury sustained by the breach of contract by the defendant.
Appeal from Calhoun. Tried before the Hon. Fielding Jones.
Suit commenced April 16, 1862, by appellee against appellant, on the following contract in writing:
St. Joseph's Island, January 27, 1848. On the first day of January next, I promise to pay W. M. Varnell, or order, the sum of one hundred and fifty dollars for value received of him in the hire of a negro boy named Bill, for the present year 1848, which I am to furnish with two suits of clothes, and return to him on the first day of January, 1849.
The petition alleged that the slave had never been returned, nor the hire paid, and prayed judgment for the hire and the value of the slave, and interest and costs.
The defendant answered by a plea of the statute of limitations, as to so much of the petition as claimed the value of the slave; and alleged that the slave had, without any fault of defendant, run away in March, 1848, and defendant had not the benefit of his services after that time; and that defendant had made diligent search for him but had not been able to find him.
The plaintiff amended by alleging that the defendant had cruelly beaten and abused the slave, and if he ran away at all, it was caused by the wrongful acts of the defendant, whereby the slave was wholly lost to the plaintiff.
It appeared from the evidence that the defendant had cruelly treated and abused the slave, causing him to run away; and that in March, 1848, while a runaway, the slave had been killed while resisting capture by a party which had pursued him for breaking into houses in Indianola, in the night time, and stealing. The slave was armed with a hatchet, and being come upon suddenly, attacked the person who shot him. The defendant proved by a witness that plaintiff offered the witness ten dollars if he would find the slave and bring him back; that witness could not find him, and informed the agent of the plaintiff that the slave had run away.
It appeared from the record that the plaintiffs asked the following instructions, which were given:
That if the jury believe from the testimony that the defendant contracted to return the negro and pay the hire, and that he did not do so, they must find for the plaintiff, unless they should find from the evidence that it was impossible for him to do so in consequence of the death of the negro, or that he ran away without any fault of the defendant.
If the jury believe from the evidence that the negro was induced to run away by the cruelty or ill treatment of the defendant, and that the negro was afterwards killed, the defendant is responsible both for the value of the negro and his hire for a year.
The defendant asked the following instructions, which were refused:
That if the jury believe from the evidence that the defendant was to return the slave to the plaintiff on the first of January, 1849, and failed to return him as he had undertaken to do, and that the plaintiff did not institute his suit until the 16th day of April, 1852, then they must find for the defendant, so far as the value of the slave was concerned.
If the jury believe from the evidence that the plaintiff's cause of action accrued more than two years next before the institution of the suit, they must find for the defendant, so far as the claim for the value of the negro is concerned.
The jury found for the plaintiff the hire for the year 1848, and the value of the slave, with interest from the first day of January, 1849. Motion for a new trial overruled, etc.
The instructions copied in the brief of counsel for appellant, and referred to in the opinion, were as follows, purporting to have been given at the request of the plaintiff:
If the jury find the defendant agreed to return the slave at the end of the year, and that the slave ran away, the defendant is bound to use all proper diligence and exertion to recover the negro; and if they find he did not do so, and failed to return the negro, they ought to find for the plaintiff.
If the jury find that the suit was brought upon a written contract, then the suit was not barred until the lapse of four years after the negro was to have been returned.
If the jury believe from the evidence that the negro was induced to run away by the cruelty and ill treatment of the defendant Robinson, and that the negro was afterwards killed, Robinson is responsible both for the value of the negro and the hire of the negro for a year.
(These instructions were probably given on a previous trial, which resulted in the failure of the jury to agree.--REPS.)
Phillips & Phillips, for appellant, cited Wheeler on Slavery, 159, as to the apportionment of the hire.
Seawell & Baldwin, for appellee, cited Mitchell v. Mims, 8 Tex. 8;Phillips v. Wheeler, 10 Id. 542; Alston v. Balls, 12 Ark. or 6 Eng. 669; Domat, secs. 476, 468, 466, 182; Chitty on Cont. 80, as to the liability of the appellant.
Stockdale & Jones, also for appellee, cited Story on Bailments, 417, and Edwards on Bailments, 374, as to apportionment of the hire.
The record presents but two instructions given at the instance of the plaintiff. The brief of counsel for the appellant mentions other instructions as having been given; and as the counsel have appeared only by brief, it is not improbable that the instructions of which they complain were given, and inadvertently omitted in making up the transcript, and that the omission has escaped the notice of counsel. However, as there is no suggestion of a diminution of the record, we must take it...
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