#### SPICER LANE vs. ISAAC WINGATE.

June 1843

Where A. by writing, not under seal, agreed that “ho was held and firmly bound to B. in the sum of two hundred dollars,” conditioned to be void provided the said A. kept and maintained a certain old negro woman belonging to B. free from any expense to B. and A. afterwards failed to perform his agreement; Held that the $200 was not to be considered as an agreed penalty or stipulated damages — that the agreement was an indemnity to B. against any loss or expense to be incurred in maintaining the said slave during her life — that the obligation was a continuing one on A. — and that B. might at any time suo A. for neglecting to provide for the said negro, and would' not be barred by the Statute of Limitations from recovering any damages he m'ght have sustained within three years before the commencement of the suit.

Held, further, that B. was net estopped, by a bill of sale under seal from him- , self to A. for a negro ‘Daniel, in which he acknowledged to have received the price of Daniel, from shewing that the price of Daniel was the consideration of the agreement declared on.

The case of Robins v Love, 3 Hawks 82, cited and approved.

Appeal from the Superior Court of Law of Craven County; at Spring Term, 1843, his Honor Judge Bailey presiding.

This was an action of assumpsit, in which the plaintiff declared upon the common counts and also upon the following special agreement: “ Be it known that I, Isaac Wingate, am held and firmly bound unto Spicer Lane in the sum of two hundred dollars, to be levied out of my goods and chattels, lands and tenements.

The condition of the above obligation is such, that I, the said Isaac Wingate, for certain consideration to me in hand paid by Spicer Lane, which I do by these presents acknowledge, have agreed to take from the said Lane a certain old negro woman named Rhoda, and her to keep and maintain, *327so as to exonerate him the said Lane from any charge or expense on her account; provided, therefore, thatT, the said Wingate, doth fully perform, agreeable to this agreement. the above obligation to be null and void — otherwise tore-main in full force and virtue.

(Signed) ISAAC WINGATE.

December 12th, 1832.”

It appeared in evidence, that, upon a contract made between the plaintiff and the defendant, the plaintiff had agreed to sell certain negroes to the defendant, and the defendant was desirous of purchasing also a negro boy named Daniel, and that the plaintiff declined selling him, alleging that he wanted Daniel to wait upon an old negro woman in his possession named Rhoda, who was upwards of one hundred years of age, to which the defendant replied, that il the plaintiff would let him have Daniel, he would support old Rhoda tor life; that thereupon the plaintiff agreed with the defendant to let him have Daniel, in consideration that he, the defendant, would support old Rhoda during her life ; the parties valued Daniel at two hundred dollars, and the defendant executed the agreement as above recited, the boy Daniel having been conveyed to the defendant by the plain- • tiff, as the consideration of the said agreement. This evidence was objected to by the defendant, but admitted by the Court, to shew what was the true consideration of the written agreement. It further appeared in evidence, that old Rhoda went into the possession of the defendant, directly after the execution of the said agreement, under the same, and remained there for about four weeks, after which timo she returned to the house of the plaintiff, where she has remained ever since up to this time, and been supported by him; and that, within a month or two before the issuing of the writ in this case, the defendant was heard to declare, that the plaintiff wanted him to take old Rhoda and support her, or pay him the two hundred dollars mentioned in the agreement, but, before he would do either, he would get clear of every thing he had, It farther appeared, that it was worth twenty-five dollars a year to support Rhoda. The defend*328ant then introduced in evidence a bill of sale under seal from the plaintiff to the defendant, for the boy Daniel and other negroes, dated on the same day with the agreement above rec¿tec¡) jn whieh the plaintiff acknowledges that he has received five hundred and fifty dollars in full for the said ne-groes ; and the defendant insisted, that, as the agreement declared upon was founded on the consideration of the sale of Daniel as aforesaid, the plaintiff was estopped by the said deed to recover under the said agreement; and, moreover, that his right of action in this case was barred by the Statute of limitations.

Upon the question of the Statute of limitations, the Court intimated to the plaintiff’s counsel, that, there being no seal affixed to the signature of the defendant in the agreement declared on, the plaintiff was barred of his recovery by the statute ; but, by consent of the parties, this point was reserved, and the case was submitted to the jury upon the facts before stated, and, under the instruction of the Court, they found a verdict for the plaintiff, assessing his damages at seventy-five dollars. Upon the question reserved, after argument of counsel, the Court was of opinion that the statute of limitations was a bar to the recovery of the plaintiff, and therefore the verdict was set aside and a nonsuit entered, from which the plaintiff appealed.

J W. Bnjan for the plaintiff.

The Statute of limitations does not bar. This is but a contract of indemnity, in which the defendant agrees to take from the plaintiff negro Rhodn, and her to keep and maintain, so as to exonerate the plain-úfffrom any charge or expense on her account, and if the defendant “doth fully perform agreeable to this agreement, then the obligation is to be void.” In the case of a promise of indemnity, the statute does not apply until the lapse of three years from the actual damnification, that is from the time, when the party to whom the indemnity is given, actually pays the debt or damages, and not from the time his liability to pay accrues. Chitty on Contracts, 815. Huntley v Sanderson, 1 C. & M. 467. Collinge v Heywood, 9 Ad. *329& E. 633. The mere taking of the negro by the defendant for four weeks, was not a compliance with the contract, so' that the statute of limitations would begin to run from that time, but he was to take her, and keep her, and maintain her, so as to exonerate the plaintiff, and when he refused so to do, the statute began to run from that time. The fact has been affirmed by the jury, that within a month or two before the writ was issued in this case, a demand was made upon the defendant for the “ charge or expense” for keeping' Rhoda, and when the defendant refused to pay the same, then the plaintiff was damnified, and his cause of aetion on the agreement arose. This was a subsisting and continuing contract, during the lifetime of negro Rhoda, and the plaintiff would have a cause of action upon the same at any time during her life, when the defendant should refuse to keep-and maintain her so as to exonerate the plaintiff. When'he refused upon the demand to perform the contract, then the statute begins to run. Cowper v Godman, 23 Eng. Com. L. Reps. 452. If the consideration be executory, the time of limitation does not commence until after the consideration has been executed, and so it is it the act to be performed is executory, no cause of action arises until a refusal. The statute did not begin to run, from the time of making the promise, but from the time damages were sustained; and on a promise to indemnify, one action may be brought, and a recovery had for a breach or breaches; and then a subsequent action on the same promise for another breach or breaches happening after the first recovery, and so toties quoties. Hale v Andrus, 6 Cowan’s Rep. 225. There was no error in permitting the plaintiff to shew that the sale of Daniel was the consideration of the agreement declared on. The evidence did not contradict, vary, or add to the deed, but merely explained or elucidated it. Clark v McMillan, 2 Car. L. Rep. 265. Robbins v Love, 3 Hawks, 82. The action is not brought to recover the consideration money mentioned in the deed, but upon a contract founded upon that consideration. There is therefore no estoppel, and if it did arise, the defendant cannot avail himself of it on the *330pleadings, there being no release pleaded. 3 Dev. R. 508. Buin v Buie, 2 Iredell, 87.

.If the defendant is not liable upon the special agreement, jig jg jn tpjjs action upon the other count for the support furnished by the plaintiff to the old negro woman Rhoda, whom the defendant was under a legal obligation to maintain, and the jury have accordingly rendered their verdict for the last three years support, they having found that the plaintiff both demanded and sued for the same in time.

J H. Bryan for the defendant.

Ruffin, C. J.

The verdiet was rendered for the value of the maintenance of the slave for three years immediately preceding the commencement of the suit, but subject to the point reserved, whether the action was barred by the statute of limitations. Upon that the Court was of opinion for the defendant,.and the verdict was set aside and a nonsuit entered. As it seems to this Court, that opinion was erroneous.

It appears that the plaintiff owned a superannuated slave, whom he was bound in morals and in law to maintain, and that he contracted with the defendant to take, keep and maintain her, so as to exonerate the plaintiff from that charge. As the question is upon, the statute of limitations only, it is to be assumed-that the proper evidence was given in other respects, as, for example, that the defendant would not provide for the negro, but threw her back on the plaintiff’s hands. Upon such a case, we think the recovery right as far back as it goes. The statute runs only from the time an action could have been brought for the sums now recovered, and not from the making of the contract, nor even from a prior breach, if upon such breach a distinct sum would have been recovered and not the sums now in question. The only way, in which this action can be barred, is by holding,, that the contract is strictly for the payment of the sum specified, namely, $200, in case the defendant failed to take or keep the slave ; and that whenever he might thus fail, he would be liable for that sum, neither more nor less, as an a*331greed penalty. But we think that is not the proper light in which this transaction is to be viewed. If the agreement were under seal, it might, perhaps, be objected, that it was not an affirmative covenant to do the acts therein mentioned to be done on the part of the defendant, but, strictly, an obligation with collateral conditions. But, it maybe mentioned, even in that case, under the statute, the obligee would substantially have his action from time to -time as 'he sustained damages. But, here, the agreement, though not oral, is in parol, and the subject of the more liberal action of as-sumpsit, in which it is to be enforced according to the real meaning of the parties, as gathered from the whole instrument, without so much regard to the form, which the stipulations assumed. We think the plain import of the agreement is, that the defendant will properly maintain this aged woman during her life, and that it is in truth an indemnity to the plaintiff against any loss or expense to be incurred in maintaining her during that period. We need not now say, whether the $200 be not the extent ef the indemnity, as the verdict is only for ‡75. But we are clearly of opinion, that upon a breach by the defendant, by merely not providing for the slave, say, for a month or year, whereby the plaintiff was obliged to maintain her, 'the plaintiff could not recover the whole sum of $200, as it is obviously a penalty merely; and it cannot be supposed the parties contracted for it, without regard to the real injury arising out of the defendant’s breach of contract. Suppose the defendant to have maintained the woman five years, and then turned her over on the plaintiff, who kept her a week, when she died $ in that case the defendant would have reason for contending that he was not to pay the penalty, but only the value of the maintenance provided by the plaintiff. So, on the other hand, the plaintiff, upon a breach occurring, was entitled to recover only such damages as had arisen when he brought this action — . And as the obligation of the defendant is a continuing one during the life of the slave, the plaintiff might waive a previous breach, without losing the benefit of the contract altogether. Here, he sued for maintaining the slave from the *332time she left the defendant’s; and, as to that portion of the lime, which was more than three years before suit, the slat-nte was a bar, but, for what fell within that period, it was . not a bar.

Being of opinion for the plaintiff on the point reserved, it becomes necessary that the Court should also advert to the objections, taken at the trial on the part of the defendant.— Upon both of them we think the decision right.

The contract was not under seal, nor any consideration expressed on its face. It was, therefore, necessary that the true consideration should be and proved. alleged in the declaration

The case of Robins v Love, 3 Hawks, 82, shews that no estoppel arose out of the plaintiff’s deed for the negroes. — . This action is not brought for the price of Daniel, as such, but for damages arising on a contract into which the defendant entered in consideration of the conveyance of that slave.

The judgment must be reversed, the non-suit set aside and judgment for the plaintiff upon the verdict.

Per Curiam. Judgment below reversed and judgment for the plaintiff.