Singleton v. Carroll et al

• Decision Date: 14 October 1831
• Citation: 29 Ky. 527
• Parties: Singleton vs. Carroll <I>et al.</I>
• Court: Kentucky Court of Appeals

29 Ky. 527

Singleton vs. Carroll et al.

Court of Appeals of Kentucky.

October 14, 1831.

Appeal from the Fayette Circuit; THOMAS M. HICKEY, Judge.

Judge BUCKNER, delivered the opinion of the court.

THIS was an action of covenant prosecuted by Singleton against Carroll and Sayer, on a writing executed by them to him, bearing date 4th January 1828; by which they bound themselves to pay to him for the hire of a negro man, from that time until Christmas, one hundred dollars, to furnish for said slave the usual summer clothing, and to deliver him with as good clothing as he then wore, to the order of Singleton, in Lexington, at the expiration of the time for which he had hired him.

The breaches assigned in the declaration are, the failure of the defendants to pay the $100, and to deliver the negro at the time stipulated.

Two pleas were filed: 1st. Covenants performed. 2d. That they paid the $100; and that previous to the day on which they were bound to deliver the slave, he had run away from them, without any negligence or fault on their part; and that upon diligent search and inquiry they had not been able to regain him; and that therefore, they could not deliver on the day named in the covenant sued on, &c.

To the last plea there was a demurrer, which was overruled. Upon the trial of the cause, a verdict was returned for Singleton for $111, 16 cents, on which judgment was entered, after a motion for a new trial, submitted by him, was overruled. To reverse it he prosecutes this appeal.

The only point presented by the assignment of errors worthy of consideration, is the sufficiency of the second plea. For the appellees, it has been contended, that a covenant should never be so strained in its construction, as to make it bear a meaning, which was probably, not in the contemplation of the contracting parties; and that the one under consideration is not fairly susceptible of such an interpretation, as to render them responsible for the loss of the slave, which had occurred without their fault, and in such a manner as rendered it impracticable for them to have prevented it.

The appellant insists, that in whatsoever light a defence of such a character should be viewed, when relied on against the non-performance of a duty created by law, that it presents no sufficient plea to a covenant like this, in which there is an express undertaking to deliver the slave.

The decision of the question must depend upon the meaning of the parties, for in the construction of covenants, it is certainly proper to look to the intention of the contracting parties, as the governing criterion; so far as it can be ascertained from the whole context of the instrument, ex antecedentibus, et consequentibus. In endeavoring to do this, established principles of decision must not be disregarded. Where the law creates a duty or charge, and the party is disabled from performing it, without any default on his part, and has no remedy over, the law will excuse him; as in the cases of waste against tenants in dower, by the courtesy, for life and years &c. but where by his own contract, he imposes upon himself a duty, the general rule is, that he is bound to make it good, notwithstanding an inevitable accident. Thus where a lease, by indenture, was made of a meadow, bounded on one side by a river, and the lessee undertook to sustain and repair the banks, to prevent the water from overflowing them, upon pain of forfeiting a sum of money; by a sudden flood the banks were destroyed, it was adjudged, that although he was excused from the penalty, because the injury was occasioned by the act of God and therefore inevitable, he was bound to repair, in convenient time, because of his covenant; Selwyn's Nisi prius, II. vol. 393. So if a lessee covenant to repair generally, he is liable to an action of covenant, if the house be burnt down by fire; Com. Rep. 627, Earl of Chesterfield vs. Duke of Bolton, cited in II. Sander's Rep. 233-6. The risk of the destruction of the banks by floods and of the house by fire are supposed to have been considered by the parties, and the covenantor having expressly undertaken to sustain and repair, cannot be excused by a casuality against...