Poythress vs. Poythress. 4th. Because the trust reposed in this defendant is special, continuing and executory, and this defendant insists that he ought not be compelled to relinquish the same sun marily and unheard, unless upon a case of palpable necessity, which case is not made by the bill of complainant. 5th. Because the bill seeks to abolish and annul an executory trust, complainant having the equitable interest only-or, if not to destroy the legal estate, at least to leave it without representation, and thereby to defeat the intention of the testa tor." After argument had on the rule and answer, the Court discharged the rule, and refused to appoint a receiver, and Counsel for complainant excepted. B. H. HILL, for plaintiff in error. E. Y. HILL, for defendant in error. By the Court.-LUMPKIN, J. delivering the opinion. [1.] The only question in this case is, not whether another trustee should be substituted in the place of the one designated by the will, but whether, from the case made by the bill, a receiver should be appointed ad interim ? The only ground upon which this could be done, is, that the trust estate is likely to be wasted before the termination of the litigation; so that ultimate injury will accrue to the complainant. He, himself, does not, and we apprehend would not, swear that he fears any such result. [2.] Whether or not Russell K. Poythress is a suitable person to execute the trust devolved upon him by the will of his deceased father, has nothing to do with the interlocutory issue, respecting the appointment of a receiver. The habits of the trustee-his treatment of the cestui que trust, will all be proper matters of inquiry and proof, upon the final trial of the bill. I repeat, the only question now is, is the trust fund likely to VOL. XVI-52 Collins vs. Lester. be squandered, during the short time that may intervene before the hearing, so as not to be accessible, to answer the decree which may be rendered in the premises? Considering the personal responsibility of the trustee, is such a result likely to occur? It is not alleged that he has gambled off any negro or note belonging to William B. Poythress, nor even one of his own. And the Court below adjudged, that the fact that the defendant played cards and billiards, and frequented the grog-shops, was not, of itself, sufficient to justify the exercise of the extraordinary power invoked on this occasion. And however reprehensible such habits and practices may be, we cannot say that this was such a flagrant abuse of the Judge's discretion, as to demand the intervention of this Court. 16 410 106 868 No. 39.-ROBERT COLLINS, plaintiff in error, vs. WINIFRED [1.] The principal is plain and familiar, that all oral negotiations, conversa-tions and agreements between the parties to a written contract, and in relation thereto, which precede or accompany the execution of the instrument, must be treated as merged in it. But where there is strong presumptive evidence, that subsequently to the execution of a written contract, the parties agreed, orally, upon a new contract, which was a modification of the former, testimony may be received of negotiations and conversations between these parties, previous to the written contract, for the purpose of throwing light upon, and showing more clearly, the nature and character of the subsequent agreement. [2] Nothing is better settled, than that the case of an agent falls within a class which forms one of the special exceptions to the general rule, that a witness, interested in the subject of the suit, is not competent to testify on the side of his interest. And this exception extends, in principle, to every species of agency or intervention by which business is transacted; unless the case is overborne by some other rule. Collins vs. Lester. Case in Bibb Superior Court. Tried before Judge STARKE, May Term, 1854. This was an action on the case, brought by the defendant in error, against the plaintiff, for the recovery of the value of a negro slave named Tom. On the trial, plaintiff offered in evidence the testimony of Robert B. Lester, taken by interrogatories, in substance, as follows: "That in the year 1852, at the request of defendant, he hired for defendant, two of the negroes, Isaac and Robin, belonging to the estate of Benjamin L. Lester, of Baldwin County; and before they were delivered to defendant, he exchanged one of them with the plaintiff, for a boy named Tom, who, she said, was hard to manage. When witness delivered the two boys, Robin and Tom, to the defendant, he expressed himself satisfied with the arrangement. Witness delivered the negroes to defendant, in Macon, in January, 1852, with the distinct understanding that the negroes were to work, either on the South-western Rail-road or Muscogee Rail-road. In August or September, 1852, defendant informed witness that the grading on the Muscogee road was completed; and asked witness to consent that he might take Tom to Brunswick; witness refused to give his consent. Defendant then said that he would put him to work on the South-western Road. In a few days, defendant told witness that Tom had gone with the overseer and hands to Brunswick; and in a few days after they arrived at Brunswick, Tom was taken sick and died. Plaintiff's consent for Tom to go to Brunswick was never asked, save through witness, and he refused, knowing that she would be unwilling for him to go. There was a statement, in writing, that the defendant had hired these two boys, Robin and Tom-the price at which he had hired them-the number of suits of clothes the defendant was to furnish them, and the time the hire was to be paid; and that he hired them from me". Counsel for defendant objected to the testimony, and read to the Court another set of interrogatories and answers, for the Collins vs. Lester. same witness, taken by the defendant, in substance, as follows: "I have looked upon the instrument attached to the interrogatories, to wit:" "MACON, JANUARY 2d, 1852. We acknowledge to have hired from Robert B. Lester, two negro fellows, Tom and Robin, and we promise to pay for Tom one hundred and twenty-five dollars, and for Robin, one hundred and fifty dollars; time of hire to expire on the 24th December next; and we promise to furnish said negroes the usual food and clothing, and to pay Doctor's bills, in ordinary sickness-said hire to be paid quarterly. ROBERT COLLINS". It is so much of the contract of hiring, as was reduced to writing; but does not contain that part relating to how and where the boys were to be employed. The instrument was not drafted at the time of the hiring, for the hiring occurred in December, 1851, and the instrument was drafted in January, 1852. There was no other written contract". The Court over-ruled the objection, and allowed the answers to the first set of interrogatories, to be read to the Jury; and Counsel for defendant excepted. Plaintiff then proved by Robert A. Smith, that Brunswick was not on the South-western or Muscogee Road, but was at a distance from both roads, in Glynn County, some two or three hundred miles, and closed. The defendant then read in evidence the interrogatories and answers, taken out by him, for Robert B. Lester, and the instrument thereto attached. The Court charged the Jury, "that if they believed, from the evidence, that there was a contract between plaintiff, or her agent, and defendant, that said negro Tom should work during the year 1852, on the South-western or on the Muscogee Rail-road only, and that defendant carried the negro Tom, without the consent of the plaintiff, to Brunswick, where said negro died, then they should find for the plaintiff". Collins vs. Lester. To which charge, Counsel for defendant excepted; and upon these exceptions has assigned error. COLE and SMITH, for plaintiff in error. STUBBS & HILL, for defendant in error. By the Court.-STARNES, J. delivering the opinion. [1.] The question first to be considered, relates to the admission, in evidence, of the oral understanding stated by the witness, Robert B. Lester, to have been made with him as agent for the defendant in error. The principle is plain and familiar, that all oral negotiations, conversations and agreements between the parties to a written contract, in relation to the subject matter thereof, which precede or accompany the instrument, must be treated as merged in it; and the latter is to be received as the sole evidence of what was agreed upon or contracted by the parties. It is our opinion, however, that this principle did not operate to exclude the oral agreement testified to by Lester, notwithstanding the subsequent execution of the instrument which was in evidence. The date of that instrument was the 2d day of January, 1852, and the witness proves that sometime in August or September following, the plaintiff in error informed witness, that the grading on the Muscogee Rail-road was finished, and asked his consent, as agent for the defendant in error, that he should be allowed to take the slave Tom to Brunswick; which request was refused. He also swears, that the plaintiff in error then said, that he would put Tom to repairing the track of the South-western Rail-road, and that in a few days thereafter, he came to the witness and told him that he had not sent the slave to work on the said road; but that he had gone off with the overseer and hands to Brunswick. In another place, the witness represents the plaintiff in error, as saying, that the overseer had carried Tom with him, without his consent. |