Twidy v. Saunderson

• Decision Date: 31 December 1848
• Parties: JONATHAN TWIDY v. JESSE SAUNDERSON.
• Court: North Carolina Supreme Court

9 Ired. 5

31 N.C. 5

JONATHAN TWIDY

v.JESSE SAUNDERSON.

Supreme Court of North Carolina.

December Term, 1848.

A. hired a negro from B. and gave his sealed note as follows, “On the 1st day of January, 1848, I promise to pay to B. one hundred and thirty dollars, the slave is hired on the same terms as other slaves, for the hire of the boy Evartson.” Held, that this writing only referred to the price of the negro, and was not a memorial of any other terms of the agreement, and that, as to these latter, parol evidence was admissible.

And in such a case, in order to recover damages for a breach of the agreements, not mentioned in the note, an action on the case and not an action of covenant is the proper remedy.

Appeal from the Superior Court of Law of Tyrrell County, at the Fall Term, 1848, his Honor Judge BAILEY presiding.

This was an action on the case, in which the plaintiff proved by parol evidence, that, on the 1st of January, 1847, he hired to the defendant a negro man for the year 1847, that the agreement was made in the County of Tyrrel, and by the terms of the agreement, the defendant was not to risk the slave on water or to carry him out of the County of Tyrrell; that, at the same time and place, many other slaves were hired by other persons and the same terms were openly and expressly agreed upon by the respective parties.

The plaintiff further proved, that, during the year 1847, the defendant hired the slave to one Spruil, who carried him to the County of Martin, where the negro was killed.

This action was commenced on the 8th of January, 1848, and the plaintiff declared in case, for permitting the negro to be carried out of the county, and also in trover.

The defendant offered in evidence a note under seal, which he had executed to the plaintiff, for the hire of the negro. The note was in these words. “on the 1st day of January, 1848, I promise to pay to Jonathan Twidy, one hundred and thirty dollars, the slave is hired on the same terms as other slaves, for the hire of boy Evartson”

The defendant objected to the parol evidence offered by the plaintiff, upon the ground that it was not admissible to explain the written contract under seal. His Honor admitted the evidence.

The defendant also contended that the action was misconceived and should have been covenant and not case. His Honor held, that the action could be maintained, and instructed the jury, that, if it was a part of the contract, that the slave should not be carried out of the county, and he nevertheless was carried out of the county and killed during the time of hiring, the plaintiff was entitled to recover and the measure of the damage was the value of the slave. The jury found for the plaintiff and assessed the damage at $832 56.

Biggs, for the plaintiff.

Heath and E. W. Jones, for the defendant .

PEARSON, J.

The case, as made up, presents but two exceptions on the part of the defendant: one as to the admissibility of parol evidence; the other, as to the form of action; and this Court is necessarily confined to these two questions, for it is to be taken for granted, that the case was made up in reference to these two questions alone.

When parties reduce their agreement to writing, it is a rule of evidence, that the parol testimony is not admissible to contradict, add to, or explain it; for although there be...