
    
      Daniel T. Compton vs. Washington Martin.
    
    Defendant hired to plaintiff a negro for two years and put plaintiff in possession ; it was agreed that, if the negro should become dissatisfied, after two or three months trial, the contract should he at an end; defendant in a few days got possession of the negro and sold him: Held,, that the contract of hiring having been performed by the defendant, was not within the 4th section of the statute of frauds.
    
      Held, also, that defendant could not rescind the contract at the end of a few days.
    
      Held, further, that, in trover for defendant’s conversion, the true measure of damages was the difference between the amount fixed as hire and the profits of the negro’s labor for two years.
    The fourth section of the statute of frauds extends only to cases where there is not to be complete performance on either side within a year.
    
      Before Frost, J. at Laurens, Fall Term, 1851.
    The report of his Honor, the presiding Judge, is as follows:
    “The action was trover. The defendant hired to the plaintiff George, a young negro man, for two years, for the sum of one hundred and forty dollars. The plaintiff was to instruct George to make shoes. George was sent by the defendant to the plaintiff. After he had been a few days with the plaintiff, George went off to the defendant’s. Some negotiation ensued between the plaintiff and defendant respecting the return of George. There was evidence of some condition annexed to the hiring, that if George was dissatisfied, after two or three months trial, the contract should be at an end. Whether this was a condition of the original agreement, or made after George left the plaintiff, was not certainly ascertained. The defendant sold George in a few days after he had returned to him from the plaintiff There was evidence that George, as an apprentice, would earn for the plaintiff, during the first year, thirty-five cents a day, and during the second year, fifty-five or sixty cents a day. The difference between the hire and the profits of George’s labor was what the plaintiff claimed by way of damages.
    
      “ A motion was made for a non-suit, on the ground that the contract was not to be performed in one year, and invalid, under the statute of frauds, because not in writing. The motion was refused, because the contract was fully performed by the defendant when, in execution of the agreement between them, the defendant sent George into the possession of the plaintiff; and nothing more remained for the defendant to do. The contract was to be, and, in fact, was performed immediately. The statute does not require the price to be paid or the consideration to be performed within the year.
    
      “ The jury were instructed that if the evidence shewed that it was a condition of the contract, that the defendant might rescind it, if he was not satisfied, then the verdict should be for the defendant. But, if the condition was, that, if George, after two or three months trial of the trade, was dissatisfied, the contract might be rescinded, the plaintiff was entitled to recover. By selling George immediately, the defendant had brr.ken his contract and forfeited any benefit from the condition. The jury were further instructed that what the plaintiff claimed was the true measure of his damage. They found for the plaintiff eighty dollars.”
    The defendant appealed, and now moved for a non-suit, and failing in that, for a new trial.
    For a non-suit on the following grounds:
    1. That the contract for the hire of the slave was not to be carried into full, effective and complete execution within the space of one year from the making thereof, but extended to a period of two years, and, it is respectfully submitted, was void under the statute of frauds.
    
      2. Because there was no such part performance on behalf of the plaintiff as to take the case out of the statute of frauds.
    For a new trial, on the above grounds, together with the additional grounds:
    
      1. Because the proof was, that the plaintiff was to pay $ 140 for the hire of the negro for two years, and to instruct him in the trade of shoe making, with condition that the contract might be rescinded or continued after two or three months trial, and it was rescinded. And the services of the negro for the first three months were not more than equivalent to his board and clothing, and no damage could have been sustained during that time by loss of service.
    2. Because, that if the contract were obligatory, the jury erred in giving eighty dollars damages for the plaintiff, when the demand on the part of the plaintiff could not have exceeded $140, the stipulated hire; and the demand of the defendant was for at least $140, the hire and compensation for loss of instruction of his negro, together with the board and clothing of said negro, which exceeded the claim of the plaintiff, and-the verdict ought to have been for the defendant.
    3. Because the plaintiff sustained no damages, and the verdict was contrary to law and evidence.
    Sullivan, for appellant,
    cited Chit, on Con. 58, 67. 68, 395; 11 East, 114; 3 Pick. 83; 17 Wend. 307; 5 Wend. 204 ■ 2 Bail. 614.
    
      Young, Simpson, contra.
   Curia, per Wardlaw, J.

The motion for non-suit assumes, that the agreement, in its nature, could not have been fully executed by the plaintiff before the expiration of two years, and, therefore, contends that it is within the fourth section of the sta-tuté of frauds. But the defendant, on his part, had fully executed it by the delivery of the boy George, subject only to the stipulated condition under which it might have been rescinded after two or three months trial by George. The section of the Statute which is relied on, extends only to cases where, by the appointment or understanding of the parties, there is not to be complete performance on either side within a year. Where the contract is executed by one of the parties, or is intended to be so, within the year, the statute does net anply, although there may be some acts to be done by the other party, beyond the limit of a year. Donellan vs. Read, 3 B. and Ad. 899; Bates vs. Moore, 2 Bail. 614.

The report sufficiently answers the grounds for new trial. The jury, under the instructions given, have, in effect, decided that the defendant had not, under the condition, which was vaguely proved, an absolute right of recision at pleasure within three months, and that by selling George he has unjustifiably anticipated the existence of dissatisfaction, which the plaintiff says would not have existed at the prescribed period.

The jury were authorized to estimate the damages according to the evidence. The defendant contends that, as the plaintiff was only to pay $140, and has paid nothing, he cannot have sustained any loss. The same course of reasoning would establish that no damages can ever be recovered against a party who refuses to perform his agreement, where the other party has not done, and is not yet bound to do, what is stipulated on his part; or that every agreement to sell and deliver may be violated at pleasure; or even that by refunding the price and interest, a party selling may rescind a contract of sale already executed.

The motions are dismissed.

Evans, Frost, Withers and Whitner, JJ. concurred.

O’Neall, J. absent at the argument.

Motions dismissed.  