Young v. Lewis

• Court: Texas Supreme Court
• Writing for the Court: LIPSCOMB
• Citation: Young v. Lewis, 9 Tex. 73 (Tex. 1852)
• Decision Date: 01 January 1852
• Parties: YOUNG v. LEWIS.

9 Tex. 73

YOUNG

v.LEWIS.

Supreme Court of Texas.

1852.

A hiring by the month at so much per month is a hiring from month to month, each party having a right to terminate it at the expiration of a month, but not after another month has commenced to run.

There is no distinction as to the rights of the parties between a hiring for a year and a hiring for a shorter period.

Where the owner of a slave sued the hirer for the value of the slave, which had died of cholera while in the hirer's possession, alleging as the ground of the defendant's liability that the latter had refused to redeliver the slave on demand at the expiration of the term of hiring, it was held that if the plaintiff had sought to recover on the ground that defendant had not treated the slave with proper diligence, it should have been the subject of a distinct averment, and that the admission of testimony as to diligence without objection did not affect the question.

Where the hirer refuses to redeliver the property at the expiration of the term of hiring he becomes liable for all loss, diligence or no diligence.

In a case of hiring from month to month neither party, it seems, is entitled to warning.

Appeal from Bexar. The appellant brought his suit to recover from the appellee the value of a negro girl, a slave, alleged to have been the property of the appellant, and to have died of the cholera in the possession of the appellee, to whom she had been hired by the appellant.

In the petition it was stated that in the month of March, A. D. 1849, petitioner hired to the said Nathaniel Lewis a negro woman, a slave, by the month, of the value of five hundred dollars; that at the expiration of the said month and before the cholera broke out in the city of San Antonio where the said Lewis was then residing and where he kept the said negro woman, your petitioner, greatly apprehensive that said slave might fall a victim to the cholera then raging in said city, as hundreds were dying, demanded the said slave of the said Lewis for the purpose of taking her home and out of the influence of the cholera, and positively refused to hire said slave for another month, as the risk was too great on account of the cholera; but said Lewis refused to deliver up said slave and wrongfully detained her from your petitioner, who had a right to control his own property as he saw proper. The petition in substance then proceeded to state that the slave, while so in the possession of Lewis, in the said city of San Antonio and in the month of April or May, A. D. 1849, and while the said Lewis detained the said slave in his possession, contrary to the will of petitioner and contrary to petitioner's repeated request to have said slave delivered up, died of the cholera. He alleged that in consequence of such wrongful act of detaining the slave after petitioner had demanded her to be delivered up petitioner sustained damage by the loss of said slave to the amount of five hundred dollars, &c. The petition contained no other averment.

The proof was that the slave was hired “at twelve dollars per month;” that the hire of the first month was paid, and that the slave continued with the defendant until about ten days thereafter before she was demanded, and that she died of the cholera within six days after she was demanded. There was also some proof as to diligence.

There was a verdict and judgment for the defendant. Motion for a new trial overruled. The only question was whether the court ought to have granted a new trial.

I. A. & G. W. Paschal, for appellant. I. We do not believe that a monthly hiring at twelve dollars per month, ipso facto, gave Lewis a right to retain the negro another month if the owner did not demand her at the end of the first month.

Such a proposition would include another, inconsistent with the best received notions, viz, that the hirer was at all events to keep the slave another month unless he returned her at the end of the first month, thus imposing on him responsibilities to supply medicines, physicians, &c., (which it has been decided by this court falls upon the hirer in the absence of a special contract to the contrary,) which perhaps he never intended. And if such a rule as to mutual implied promises be good as to a monthly hiring it would also be good as to a yearly hiring.

We think the law will the rather be found to be that after the expiration of the month the hirer holds the slave as a tenant at will, subject to be redelivered on demand, and that, at most, if demanded at the middle of the month, the bailee might claim to be excused from paying the half month's hire.

Such a hiring will be considered as a hiring at will, if indeed it be considered any hiring at all. (Story on Contracts, 2d ed., sec. 962 (g); Bailey v. Rimmell, 1 Mees & Web., 506; Rex v. Matthews, 3 T. R., 449; and see Story on Contracts, 962, a a.)

A careful examination of these references will show that daily, monthly, and weekly hirings are all placed on the same footing, and that neither of them involves the necessity of warning or the implied right to hold over from silence. They are mutually hirings at will. If the slave be hired for a day, a...