Haskins v. Royster.

tract which is, in substance, that if either party of the second part, or any person for whom they contract, shall misbehave in the opinion of the party of the first part, such misbehaving party shall quit the premises and forfeit to the party of the first part all his interest in the common crop.

It is said that these provisions make the plaintiff a judge in his own cause, which the law will not allow, and that they are manifestly so oppressive and fraudulent as to avoid the whole contract. This proposition will be found on examination to go much too far, even as between one of the parties to the contract, and to have no application as between one of the parties and a malicious intermeddler, as the defendant must, in this stage of the case, be considered.

It is not necessary to decide what would be the effect of such a stipulation in an action on the contract between the parties to it. But as there seems to be some misconception of the law of such a case, and as, although there are numerous authorities on the question, it is not yet of "familiar learning" in our courts, a few observations will more conveniently lead us to the question actually presented.

The authorities are conclusive that the parties to a contract, if there be no fraud or concealment of the interest, may agree to make a person interested, or even one of the parties an arbitrator to decide all controversies which may arise under the contract, and such agreement will be valid and effectual.

In Watson on Arbitration, 85, it is said: "It seems that it is no objection to an award that the arbitrator was a party, or interested in the matter submitted, provided that the party objecting, at the time of the submission, knew that the arbitrator was so interested; as in the case when Sergeant Hards took a horse from my Lord of Canterbury's bailiff for a deodand, and thereupon the archbishop brought his action, and by a rule of court it was referred to the archbishop to set the price upon the horse; the sergeant afterward sought to set aside the award, on the ground of the interest of the archbishop: but it was denied by Lord HALE, and per totam curiam. Comb. 218; S. C. 4; Mod. 226; Hard. 43 ; 1 Inc. & W. 511. See also Russell on Arbitration, 108. In Morse on Arbitration, it is said that a person interested or partial is incompetent to act as an arbitrator (p. 100). But the parties may, if they choose, waive the objection. "They are at liberty to select

Haskins v. Royster.

a person interested or a person prejudiced, a relation, or an enemy of either of them. Strong v. Strong, 9 Cush. 560; Fox v. Hamilton, 10 Pick. 275. See also Morse, 108. The most important case on this question, however, is Ranger v. Great Western R. W. Co., 5 H. L. 72. There it was agreed between the plaintiff, who contracted to build the road, and the company, that Brunel, who was the engineer of the company, and a large shareholder in it, should be the judge of the amount and value of the work done. The Lord Chancellor, after saying that Brunel was the mere agent of the company, and in effect the company itself, continues: "It does not appear to me to be necessary to institute any minute inquiry as to how far the calculations of Mr. Brunel were accurate. I think it quite enough if they were bona fide, and with the intention of acting according to the exigency of the terms of the contract. The company expressly stipulated that, during the progress of the work, the decision of the engineer, as to the value of the work, should be final. If the appellant thought this a harsh or oppressive clause, he ought not to have agreed to it. It does not, however, seem to have been unreasonable." To the same effect are Elliot v. Southdown R. W. Co., 2 De Gex & Sm. 17; Hawley v. N. S. R., W. C., id. 33; Kimberley v. Dick, 13 Eq. Cases, 1.

The case of Ranger v. Great Western Railway Company also holds that penalties and forfeitures upon a contractor, provided for in case the work be not properly done, or done in due time, are reasonable, and will be enforced, even to the great loss of the careless or dilatory contractor.

These authorities unquestionably establish that such stipulations are not void or voidable even as between the parties, and it has never been supposed or contended that they made the whole contract void; as, even if void themselves, they are clearly separable from the other parts. Either party, therefore, could maintain an action on this contract.

It is important, however, to notice that none of these authorities goes to the length of holding, that if, after the contractors had duly performed all or a part of the work, the plaintiff had mala fide, or without lawful cause, discharged them, they could not recover upon the contract. The contrary is implied in the language of the Lord Chancellor in Ranger v. Great Western Railway Co., and is evidently most consistent with reason and justice. The power st VOL. XVI. - 99

Haskins v. Royster.

tempted to be reserved cannot have any greater effect than to make the discharge prima facie lawful, if so much as that.

Contracts, with such stipulations as we find in the present, are not to be commended as precedents. Such stipulations are unusi al; they answer no useful purpose, and suggest an intent (perhaps in this case untruly) to take some improper advantage, and to exact from the employees a decree of personal deference and respect, beyond that civil and courteous deportment which every man to his fellow in every relation in life. To this extent, a mutual duty is implied in every contract which creates the relation of master and servant. If the servant fails in due respect, the master may discharge him, and so, if the master fails, the servant will be justified in quitting the employment.

Again, it is suggested that the contractors of the second part in this contract are croppers, and not servants. By cropper, I understand a laborer who is to be paid for his labor by being given a proportion of the crop. But such a person is not a tenant, for he has no estate in the land, nor in the crop, until the landlord assigns him his share. He is as much a servant as if his wages were fixed and payable in money.

It is unnecessary to discuss the question whether one who maliciously persuaded a tenant to abandon his holding would not be liable in damages for such officious intermeddling.

But whatever may be the effect of the provisions commented on, as between the parties to the contract, the authorities are clear and decisive that a person in the situation of the defendant can take no advantage from them. As the case now stands, he cannot pretend to play the part of a chivalrous protector of defrauded ignorance. For the present at least, he must be regarded as a malicious intermeddler, using the word "malicious" in its legal sense.

There is a certain analogy among all the domestic relations, and it would be dangerous to the repose and happiness of families if the law permitted any man, under whatever professions of philanthropy or charity, to sow discontent between the head of a family and its various members, wife, children and servants. Interference with such relations can only be justified under the most special circumstances, and where there cannot be the slightest suspicion of a spiri of mischief-making, or self-interest.

To enable a plaintiff to recover from one who entices his servant, it is sufficient to show a subsisting relation of service, even if it be

Norfleet v. Cromwell.

determinable at will. In Keane v. Boycott, 2 H. Bl. 511 he plaintiff sued a recruiting officer for enticing his servant. The servant was an infant and had been a slave in St. Vincents, where he indentured himself to serve the plaintiff for five years. The indenture, of course, was void upon double ground, but the court held the plaintiff entitled to recover. EYRE, C. J., says: "The defendant in this case had no concern in the relation between the plaintiff and his servant; he dissolved it officiously, and to speak of his conduct in the mildest terms, he carried too far his zeal for the recruiting service." In Sykes v. Dixon, 9 Ad. & El. 693, that case is distinguished from Keane v. Boycott, upon the ground that the servant had quitted his master before the defendant employed him, and there was then no subsisting relation of service. In Evans v. Walton, 2 C. P. 615 (E. L. R.), it was held not necessary to show a valid and binding contract for service, but only the existence of the relation. If the servant was one at will, the action could be sustained. Salter v. Howard, 53 Ga., is to the same effect.

We are of opinion that the complaint sets forth a sufficient cause of action.

The judgment is reversed and the case remanded to be proceeded in, etc. Let this opinion be certified.

READE, J., dissented.

Judgment reversed.

NORFLEET V. CROMWELL, appellant.

(70 N. C. 634.)

Constitutional law — draining acts. Covenants, against whom enforced.

The right of the State to condemn land for drains rests on the same foundation as its right in cases of public roads, mills, railroads, school-houses, etc. The acts granting such powers are not unconstitutional.

Where a covenant is not to be performed on the land, but concerns it, the covenant will be enforced against an assignee of the covenantor with notice. If the party, from whom an assignee purchases, cannot complain of an alleged misuser of an easement, the assignee cannot, as he stands in the shoes of him from whom he purchased.

A

CTION upon a covenant of defendant's assignor. All the facta pertinent to the points decided are set out in the opinion of the court.

Norfleet v. Cromwell.

The jury, upon the issues submitted to them by the presiding judge, found a verdict for the plaintiffs. Judgment in accordance therewith, and appeal by defendant.

J. L. Bridgers, Jr., for appellant.

No counsel contra in this court.

RODMAN, J. These are the facts material for the present purpose as gathered from the pleadings and verdict.

In January, 1855, Eaton Cobb and the plaintiff Harrell were in the possession and use of a canal lying partly on their own lands and partly on the lands of others, of whom the defendant was one. It passed near to, but did not touch, two pieces of land then belonging to one Gregory, which, upon his death, descended to Lloyd, after whose death the defendant purchased them from his devisees.

In 1855, the defendant owned certain lands, which he still owns, which lie below the lands of the plaintiffs, and at or near the mouth of the canal. The lands which he purchased from the devisees of Lloyd also lie below those of plaintiffs, and are separated from the canal by intervening strips of land, which, in 1855, belonged to the defendant, and still do. One of these strips is thirty feet and the other three hundred and fifty yards wide.

On January 25, 1855, Cobb and Harrell entered into a covenant with a number of other persons, by which these were allowed to drain into the canal several pieces of land, not mentioned in the proceedings in the county court of Edgecombe (presently to be mentioned more fully), under which Cobb and Harrell acquired their right to the canal. This covenant provided that each party might determine what work was necessary at any time to be done on the canal, and he was empowered to do it, and the other parties were to pay their several shares of the expense, in proportions which were fixed. It also provided on what terms other persons might be afterward let in to the use of the canal, for drainage. It expressly stipulated that it should be binding, not only on the parties themselves, but also on their heirs and assigns, quoad the lands specified in it. The defendant was no party to it.

On the 29th of July, 1858, the parties to the covenant of 1855 entered into a covenant with Lloyd, by which it was agreed that he, his heirs and assigns, might drain his lands into the canal,