Duckworth v. Johnson. ceptions taken at the trial, by the defendant below. It appears that the plaintiff proved that he sold a mare to the defendant, at sixty-five dollars, to be delivered to Chesly Payne, and to be paid for by the defendant, in the labor of his two sons, for four months, at sixteen dollars per month. It was agreed, that as one of the boys was "puny," he was to make up the lost time, if red, through sickness. any occur The defendant proved, that he sent his two sons to perform the labor as agreed; that they worked six or seven days, when the healthiest of the two had a slight attack of sickness, at night, and the morning after, the plaintiff told them to go home; and that they need not return again at that price. As they left, the plaintiff told one of them, that he might return and work eight months; but neither of them ever returned. The defendant's counsel prayed the Court to charge the jury, "that if the defendant sent his boys under the contract, to perform the labor, and the plaintiff sent them home, telling them they need not return again at that price, then the defendant was not bound to send them back again till it was intimated to him by plaintiff, that he would receive them." Which charge the Court refused to give. Defendant's counsel then asked the Court to charge the jury, that if the defendant sent his two boys to plaintiff, to work out the price of the mare, agreeably to the contract, and after working six or seven days, Johnson sent them home, telling them they need not return again at that price, which was the price agreed upon by contract, that then Duckworth was not bound to send them back again, unless demanded by Johnson. This charge the Court also refused to give, but charged the jury, that defendant was bound to send them back, without any demand from Johnson, until Johnson refused to receive them, or have them, positively and peremptorily. The jury returned a verdict for the plaintiff, and judgment was rendered accordingly. E. W. PECK and L. CLARK, for the plaintiff in error. P. MARTIN and B. W. HUNTINGTON, for the defendant in error. COLLIER, C. J.-The contract of the parties, obliged the defendant to permit his sons to work four months for the plaintiff, at sixteen dollars for each month, to be applied in payment of the mare, which the latter had sold to him. Like all other agree Duckworth v. Johnson. ments, it should be executed according to its legal construction, and it is incumbent upon the defendant to show a performance on his part, or a sufficient excuse for his failure. It appeared that the defendant sent his sons to the plaintiff's house, to labor according to his undertaking; that one of them having a slight attack of sickness, at night, the plaintiff told them to go home, and that they need not return again at the price he agreed to allow for them; but that one of them could return and work eight months. This conduct was a direct refusal to receive the services of the defendant's sons on the terms stipulated and a dismissal of them from the plaintiff's employment. To do this, it was not necessary that actual force should have been employed; a command to cease laboring for the plaintiff, and that they need not return again, at the price fixed by the terms of the contract, furnished an ample apology for the defendant's failure to perform his undertaking. The latter need not have made another offer of his sons' services; but the plaintiff, if willing to recive them, should have given notice to the defendant. Whether, in the first instance, in order to put the defendant in default, a demand of performance should have been made of him, we need not inquire, as the sending of his sons to the plaintiff, presupposes such demand, or dispensed with it. The offer of the plaintiff, to permit one of the boys to work for him, double the length of time both were to labor, at the price stipulated for each, was not within the contract of the parties, and without the defendant's assent, was not obligatory upon him. It results from what has been said, that the Circuit Court should have charged the jury as prayed; its judgment is consequently reversed and the cause remanded. Bell v. Owen. BELL v. OWEN. 1. An action for refusing to comply with a contract of sale, made with a sheriff upon a sale of property under execution, is properly brought in the name of the sheriff. 2. Although a contract for the purchase of land, at a sheriff's sale, cannot be enforced, if not in writing, signed by the party, yet it is unnecessary to aver this fact in the declaration. Writ of Error to the Circuit Court of Montgomery county. ASSUMPSIT by Bell against Owen, for refusing to comply with a contract for the sale of land. The declaration contains two counts; the first of which recites that Poe had obtained judgment, and sued out a fi. fa. upon it, against one Reed, which was levied by the plaintiff, as sheriff of said county, on certain lots of land, described in the declaration; that these, after being duly advertised, were exposed for sale, according to law, on, &c., when the defendant became the highest bidder for the same, at $710; it then alledges, that the defendant, in consideration that the said plaintiff, as sheriff, would make him a deed for the lots so purchased, promised, and undertook, to pay him the said sum, when he should make titles to the land; it then avers a readiness to make titles, and an offer to do so, upon payment of the money, and the defendant's refusal. The second count differs from the first, only in stating that the land was put up on condition that the highest bidder should be the purchaser, and should pay the cash upon receiving the plaintiff's deed for the lots sold, and avers that the defendant became the purchaser, and refused to comply with these conditions, although the plaintiff was willing to make a deed, and offered to do so, if the defendant would pay him the price bid. The defendant demurred to each count of the declaration, and the Court sustained the demurrer. This is now assigned as error. HAYNE, for the plaintiff in error, cited Robinson v. Garth, 6 Ala. Rep. 204, to show that the action was properly brought in The State v. Burns. the name of the sheriff, and Wade v. Killough, 5 S. & P. 450, to show, that the averments of an offer to make titles, when the money was paid, was sufficient, without tendering a deed. No counsel appeared for the defendant in error. GOLDTHWAITE, J.-1. The decisions recently made by us, in the cases of Robinson v. Garth, 6 Ala. Rep. 204, and Lamkin v. Crawford, at this term, show that the action is properly brought in the name of the sheriff. 2. We are not aware that there is any material distinction between the mode of declaring for the breach of a contract of sale, whether the subject matter of the contract is real or personal property. Although with respect to the former, the contract cannot be enforced unless it is in writing, signed by the party to be charged therewith, yet it is not necessary to aver, that it was so, in the pleadings. With respect to the form of the counts, in this case, they seem to be substantially the same as the more general one in Lamkin v. Crawford, and under the authority of that case, we consider them as good. The consequence is, that the judgment of the Circuit Court is reversed and remanded. THE STATE v. BURNS. 1. When a white person is indicted for an assault, with intent to kill and murder, and the jury by their verdict, find him guilty of an "assault with intent to kill," the legal effect of the verdict, is, that the party is guilty of an assault, or assault and battery, as the case may be. Error to the Circuit Court of Mobile. The prisoner was indicted, and tried for for an assault with intent to kill and murder, one David Walker. The jury found him guilty of "an assault, with intent to kill." Upon this ver Roundtree v. Weaver. dict, the Court rendered judgment, and sentenced the prisoner to be confined in the penitentiary for two years. STEWART, for plaintiff in Error. ORMOND, J.-The case of Nancy, a slave, v. The State, 6 Ala. Rep. 483, is decisive of this. In that case, as in this, the indictment was for an assault to kill and murder, and the verdict for an assault to kill only, and we held, that the necessary intendment of the finding was, that the prisoner was not guilty of an assault with intent to murder, but of an assault to kill only. This is not, in the case of a white person, an offence punishable by confinement in the penitentiary, but is a mere assault, or assault and battery as the case may be. The verdict was therefore no authority for the sentence of condemnation passed by the Court, which must be reversed, and the cause remanded, that the appropriate judgment may be rendered upon the verdict. The prisoner will remain in custody, until discharged by due course of law. ROUNDTREE v. WEAVER. 1. If a sheriff has become liable for a failure to collect the money upon an execution, and pays the same to the plaintiff, another execution cannot be issued on the judgment for the purpose of reimbursing the sheriff. 2. Where an execution is superseded upon the petition of the defendant, it is competent to submit a motion to quash it, not only upon the grounds disclosed in the petition, but upon any other that will avail. 3. Semble, if the defendant approves the payment of an execution against him, made by the sheriff, in whose hands it was placed for collection, by moving to quash an alias fi. fa. upon the ground of such payment, the sheriff may maintain an action of assumpsit to reimburse himself. Writ of Error to the County Court of Dallas. |