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Rogers vs. Parham.

12 E. C. L. R. 177. Graham on New Trials, 541, et seq... 5 Mees. f: Welbs. 279,

By the Court.-Warner, J. delivering the opinion.

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11. There are but two questions presented by the record in this case, for our judgment. 1st. Did the Court err in refusing to non-suit the plaintiff? It appears that the plaintiff and defendant entered into a written, special contract, by which the former was to act as the overseer of the latter, for the year 1847, and to receive a stipulated portion of the crop for his services. The plaintiff alleges that the defendant, in the month of August, dismissed him from his employment, and this suit was instituted in November, 1847, tó recover damages from the defendant, for å breach of his special contract. The defendant insisted, that the plaintiff should be non-suited, because the action was prematurely brought; that the action could not be maintained against the de

fendant for a breach of the contract, until the expiration of the ; year 1847. We are of the opinion the Court below properly over

ruled the motion for non-suit. In regard to this particular class of special contracts, we adopt the rule stated by Smith, in his note to the case of Cutter vs. Ponell. When the overseer or agent is wrongfully dismissed from the service of his employer, he has his election of three remedies.

1st. He may bring an action, immediately, for any special injury which he may have sustained, in consequence of a breach of the contract.

2d. He may wait until the termination of the period for which he was employed, and then sue upon the contract and recover his whole wages.

3d. He may treat the contract as rescinded, and may immediately sue, on a quantum meruit, for the work and labor he actually performed. 2. Smith's Leading Cases, 27.

Here, the plaintiff has elected to sue immediately for the special injury, which he alleges he has sustained by the breach of the defendant's contract, as was done in the case of Masterton vs.

The Mayor of Brooklyn, (7 Hill's N. Y. Rep. 61.) That the plaintiff might have sued before the end of the year, for any special injury which he may have sustained in consequence of the defendant's breach of the contract, I do not doubt; but inasmuch

VOL. viu 25.

Lowe et al. os. Moore and another.

as the plaintiff in this case has alleged no other injury, arising from the breach of the contract, than that stipulated by the contract itself, to wit: the non-payment to him of the value of his part of the crop, I have a doubt in my own mind, whether this is not substantially an action on the contract itself, to recover the plaintiff's share of the crop, stipulated by that contract, to be paid him at the end of the year. However, my brethren are very clear, that it is an action for a breach of the contract, and, as I believe substantial justice has been done between the parties by the verdict, I concur with my brethren in their judgment, in overruling the motion for a non-suit.

The second ground of error taken, is to the charge of the Court to the Jury. The Court charged the Jury, that if the párties mutually agreed to rescind the contract, before the end of the year, the plaintiff in this form of action was not entitled to recover; but if the defendant dismissed the plaintiff from his service, without sufficient cause or proyocation, the plaintiff is entitled to recover whatever damages he has actually sustained. As to the fact of the parties mutually agreeing to rescind the contract, the testimony was conflicting, and that question was properly left to the Jury. We are of the opinion there was no error in the charge of the Court to the Jury, in point of law.

Let the judgment of the Court below be affirmed.

No. 33.—Jacob Lowe et al. plaintiffs in "error, vs. John Moore

and another, defendants.

[1.]. A and B both have judginents open against C, and a fund raised from C's * property is before the Court for distribution ; B's judgment is the oldest,

but has been levied upon land as the property of C, which land has been claimed, and a verdiot rendered on the claim in favor of the claimant: Held, that the levy on the land does not affect the lien of B’s judgment on the fund, and that it is entitled to it, as the oldest lien.

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Lowe et al. vs. Moore and another.

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[2.] In the distribution of a fund before him, the Judge of the Superior

Court acts upon equitable principles, but he can act only on a fand in hand,

and confessedly for distribution. [3.] In the case above, the Court has no right to impose the terms upon B,

to wit: that he should take the money, if he would dismiss his levy on the land, or agree not to appeal from the verdict rendered against himn in the claim case.

Motion, in Crawford Superior Court. "Decided by Judge FLOYD, August Term, 1849.

: The question in this case arose upon a motion to distribute money, returned by the Sheriff, as raised on a fi. fa. in favor of John Moore vs. Andrew J. Preston. Jacob Lowe, who held an older fr. fa. claimed the fund. On this fi. fa. was a levy on a lot of land disposed of, and said to be unaccounted for. It was proved to the Court, that the land was claimed by a third person, and a verdict of " not subject,” found by a Petit Jury, on the first trial at that term of the Court.

- The Court ruled, that “if plaintiff (Lowe) would not appeal, or would dismiss the levy, he was entitled to the money."

Lowe declining to do either, the Court ordered the money paid to the fi. fa. in favor of Moore; and this decision is brought up for review. There was no evidence as to the sufficiency of the property to satisfy the execution, and no evidence before the Court showing that the older fi. fa. was entitled to the two funds, and the younger to but one. It did not appear that Lowe's fi. fa. had a lien even on the property levied on. The presumption, from the finding of the Jury, was rather the reverse.

G. R. HUNTER, for plaintiffs in error.

HAMMOND and Powers & WHITTLÉ, for defendants.

By the Court.-Nisbet, J. delivering the opinion."

[1.] It was the duty of the Court, in this case, to apply the money raised out of the defendant in execution's property to the oldest lien before it. Judgments bind all the property of the defendant from their date. Lowe's judgment was the oldest, and it was plainly entitled to the money, if it was a valid, subsisting

Lowe ct al. vs. Moore and another.

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judgment. Was it? We think it was. The objection to it was, that it had been levied upon real estate of the defendant; that a claim had been put in to the real estate-was pending—and at the then term of that Court, had been tried before a Petit Jury, and a verdict rendered in favor of the claimant. All this does not interfere one whit with the lien of the judgment. A levy on lands—disposed of or not, aecounted for or not-dves not affect it. If the money has been raised on it and paid to the judgment, or is in the hands of the officer, that is a different thing. If paid, of course it is extinct. If there is money in the hands of the officer, upon which it has lien, it will be applied to it. Here, there is a levy. That, I say, does not affect the right of the execution levied to take this fund, if it is the oldest. A levy on land is no satisfaction. De Loach f. Wilcoxson vs. Myrick, 6 Ga. R. 410.. Newton vs. Nunnally, 4 Ga. R. 356. Prince's Dig. 426.

The equitable principle, that if A and B bave liens on the property of the same person, and A attaches upon two funds and B upon

but

one, A will be turned upon that fund upon which B has no lien, in order that both may be paid, has been invoked to sustain the right of the junior fi. fa. to this money. The principle is a sound one, but has no application here. Non-constat, that Lowe's lien attached upon two funds--constat, the contrary. It does not appear that the land levied on was subject to it; but it does appear, that its lien on the land was contested—a third person had claimed it. Not only so, but it does appear, by the record, that upon the trial of that claim, a Jury had found in favor of the claimant and against the lien.

[2.] The Judge of the Superior Court, in distributing a fund before him, acts upon equitable principles; but his action is upon a fund in hand, and confessedly now for distribution. This land fund was not in hand—it was judicially known to him that it was in litigation, and so far as the proof went, he knew that the judg. ment of Lowe did not attach upon it. Nothing short of a bill and a decree thereon, adjudging the land subject to Lowe's fi. fa. would, in my judgment, authorize the postponement of his lien and the payment of this money to a junior judgment.

[3.] The Court ruled, that this oldest judgment might take the money, if the plaintiff, Lowe, would dismiss his levy on the land,

, or agree not to enter an appeal from the verdict of the Perit Jury, in the claim case. - This is not a case where the Court had

Dennis and another os. Green.

power to impose couditions. The plaintiff, Lowe, had the right to stand upon his legal rights. They were not doubtful. The Court had no power to set aside a valid, subsisting lien. The law gave it, and there was no discretion in the Court to put the enforcement of it, upon any terms, much less such as are onerous and might prove the occasion of actual loss to the plaintiff.

Let the judgment be reversed.

No. 34.- Isaac Dennis, Jr. and another, plaintiffs in crror, vs.

G. J. GREEN, administrator, &c. defendant,

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[1.] The Court will dissolve an injunction, on the coming in of the answer

of the defendant, who alone is interested, negativing all the facts and circumstances charged in the bill, and upon which its equity is based, thougha

all the defendants have not answered. [2] Where the answer of the defendant is made, and sworn to, before his

death, it may be used, on a motion to dissolve the injunction, though filed

in Court subsequently. [3.] A bill may proceed, without making the representatives of a mere formal

party, parties to the proceeding. * [4.] So, if the deceased was a necessary party to the final decree to be ren

dered, but not interested in the injunction, a motion to dissolve the injunetion need not be postponed until the representatives are made parties.

In Equity, in Crawford Superior Court, before Judge FLOYD, August Term, 1849.

G. J. Green, as administrator of D. M. Causey, filed a bill in Equity, against Isaac Dennis, Sr. and Isaac Dennis, Jr. alleging, among other things, that Causey and one Jeremiah Dennis, had been partners in the business of selling merchandize, and unfortunate therein; that Causey advanced large sums to pay off their indebtedness; that, having no funds to pay a debt to J. W. & R. Levette, their joint notę was given, which note was also signed

*See Smith & Shorier vs. Mitchell, 6. Ga. Rep: 469.-[ Rep. ]

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