Townsend v. Hill

Wheeler, J.

On the question whether the hirer of a slave for a year is entitled to an abatement of the price, in case of the death of the slave before the expiration of the term, the authorities are divided. Those which follow the civil law, without exception, doubtless, maintain the affirmative. But in the Common Law States the decisions are not uniform. The weight of authority there, however, will be found, I think, to be in favor of the more equitable rule of the civil law. (George v. Elliott, 2 Hen. & Munf. R. 5; 2 Bailey’s R. 424; 9 Mis. R. 867.) Where a different rule has obtained, it has been rested, in a great degree, on a supposed analogy to the Common Law doctrine respecting the obligation of the tenant for the payment of the rent of demised premises. (Lennard v. Boynton, 11 Ga. R. 109.) It might be a question whether the analogy applies with all the force which has been claimed for it; or, admitting the analogy, whether there is such reason and justice in the rule as to commend its extension and application by analogy, to other cases. And it is yet to be seen whether that severe rule of the Common Law will prevail in this State ; or whether our Courts will not feel at liberty to follow the example of those Courts which have departed from it and followed the rule of the Civil Law. (4 McCord, 447.)

When it is considered that the equity as well as the law of the case is to be administered, there -will appear to be but little force in the argument, that the hirer should be bound for the full term, at all events, merely because that is the letter of the bond.

The argument of public policy, drawn from considerations of humanity, is certainly entitled to great weight. But it may admit of question on which side the argument lies : whether the humane treatment of slaves will not be best promoted by increasing the motive on the part of the owner to hire the slave to none but a humane master. I apprehend it is with the owners, rather than the hirer of slaves, that the motive will be found to operate most powerfully and effectually to provide against their inhuman and cruel treatment. So far as motives of self-interest may be supposed to operate upon the hirer, to observe humane treatment toward a hired slave, if ought, it would seem, to be sufficient, that he will be responsible to the owner for both the value and hire in case of loss occasioned by his inhumane treatment. This responsibility he will incur. (Robinson v. Varnell, 16 Tex. R. 382.) But the case we are considering is one where the loss of the slave has arisen from the act of God, without any fault in the hirer. And in such a case, we think there is much reason in holding, that the loss should fall on the owner, on whom, as was observed by Chancellor Taylor, it must have fallen if the slave had not been hired. (George v. Elliott, 2 Hen. & Munf. 5.) The observations of the Supreme Court of North Carolina in Benthen v. McLennen are to the same effect. “ The act of “ God does injury to no man. When a thing ceases to be, be- “ cause of a dispensation of Providence, there may be loss, but “ there is no injury; and this loss falls upon the owner of the “ property. We know of no instance where the law interferes “ to throw the loss from him, upon others, where it is not at- “ tiibuta.ble to culpable act or neglect. Then it is not a mere “ loss but an injury ; and the wrong-doer is justly answerable “ for it.” (1 Iredell, L. R. 523; and see Porter v. Miller, 7 Tex. R. 468.)

It is said the hirer should have stipulated in the contract against loss from such a contingency. And doubtless he would have so stipulated if he had thought it likely to happen. No doubt the owner would have readily assented to it, if proposed at the time. But surely the failure to stipulate against the consequences of an event which neither of the parties anticipated, ought not to preclude the hirer from having the contract apportioned, according to the dictates of natural justice, and as it doubtless would have been apportioned by the natural consent of the parties, had they anticipated the happening of the event as probable. It is the fact that it was not within their contemplation, at the time of making the contract, and therefore not provided for, that demands of the Court an apportionment of the contract, in order to do justice between the parties, according to the principles which would doubtless have guided them, had they had in contemplation the case which the Court is called upon to decide.

Without deeming a more extended discussion of the question necessary, it may suffice to say, in such a case, where the loss was confessedly by the act of Providence, without fault in the hirer, we concur in opinion with those Courts, which have held what must be admitted to be the milder and more equitable doctrine, that the hirer shall be entitled to an abatement of the price, leaving the loss to rest upon the owner of the slave. It is not only more equitable, but is more in harmony with the doctrine of the apportionment of contracts, which has been maintained by this Court in analogous cases. (Meade v. Rutledge, 11 Tex. R. 44; Hassell v. Nutt, 14 Id. 260; 10 Tex. R. 81.) It is not perceived that there is any consideration of justice or public policy, which demands the adoption of a different rule. W e are of opinion, therefore, that the Court erred in refusing to admit of an abatement of the price, on account of the death of the negro before the expiration of the term of hiring. The judgment is therefore reversed; and the cause having been submitted to the Court upon the evidence, waiving a jury, the judgment will be here rendered which the Court below ought to have rendered.

Reversed and reformed.