Thigpen v. Leigh

• Decision Date: 31 October 1885
• Citation: 93 N.C. 47
• Court: North Carolina Supreme Court
• Parties: J. R. THIGPEN, Trustee, v. F. M. LEIGH.

93 N.C. 47

J. R. THIGPEN, Trustee,

v.F. M. LEIGH.

Supreme Court of North Carolina.

October Term, 1885.

THE ACTION was originally begun before a Justice of the Peace, and brought by appeal to the Superior Court of EDGECOMBE county, where it was tried before Gudger, Judge, at Fall Term, 1884.

It was in evidence that one Van Riddick, a cropper on the lands of the defendant, made an agricultural lien to one F. L. Thigpen, in January, 1882; and in May following said Thigpen made an assignment to J. R. Thigpen as trustee. That in the trial had, in the Superior Court, it was in evidence that about the 10th of June of the same year, Riddick, of his own accord, abandoned his crop in the hands of defendant, the crop being at the time in bad condition.

It was further in evidence that Leigh at once notified plaintiff of the abandonment, and told him that he must cultivate the crop as he, Leigh, could not do it. Plaintiff said he would if defendant would furnish him with a house for his laborers. Defendant at first promised he would, but upon reflecting that the cropper, Riddick, did not live in his own house, but lived in a house with his father, he told the plaintiff he could not furnish him with a house as Riddick had none. Plaintiff told defendant to go ahead then, and cultivate the crop and pay himself his rent and the expense in making and housing it, and pay the balance to plaintiff; and defendant then replied: “If I do, you shall not have one cent of it.” Plaintiff answered: “We will see.”

It was in evidence that the defendant, after the abandonment by the cropper, cultivated the crop and marketed it, and, after taking out his rent and expense for cultivating and housing, there remained in his hands, after paying all expense, the sum of fiftysix dollars. This amount the defendant claimed for his time in looking after, furnishing and having the crop worked and housed.

The defendant requested the court to charge: “If Leigh offered to Thigpen to put him in Riddick's place to carry on the crop, and Thigpen declined to take and carry on the crop, such refusal is an abandonment on the part of Thigpen, and he cannot recover. If Riddick, the cropper, having of his own accord, and against the consent of his landlord, abandoned his crop, and the landlord having gathered the same, Riddick, or no one claiming under him, can recover any of the crop from the landlord.”

This his Honor refused to charge, and instructed the jury that plaintiff was entitled to recover what remained in defendant's hands after paying all expenses.

Verdict for plaintiff; motion for new trial; motion disallowed; judgment for the plaintiff. Defendant appealed.

Messrs. Batchelor & Devereux, for the plaintiff .

Mr. J. L. Bridgers, Jr., for the defendant .

ASHE, J., (after stating the case).

We think that the plaintiff had no right to this balance. We are unable to find any authority in point, and the learned counsel who appeared before us for the defendant, expressed their inability to find any. We are therefore compelled to decide the case upon general principles of law and justice.

We start out with the proposition that Riddick, the cropper of the defendant, having abandoned the crop in violation of his contract, was without remedy against the defendant. For “where there is an entire contract, and the plaintiff has performed a part of it, and without legal excuse and against the consent of the defendant has refused to perform the remaining part, he cannot recover anything for the part performed.” Niblett v. Herring, 4 Jones, 262; Dula v. Cowles, 7 Jones, 290. Every agreement made by the owner of...