
    Vanleer vs. Fain.
    Where the terms of an auction hiring of slaves are publicly made known, to wit. to execute bond with approved security for the hire, and non removal of the slaves out of the county, it is held that the execution of a bond with sureties, without a specification of the other condition of the hiring, did not invalidate the other, and that parol proof could be heard to prove it.
    Proof that plaintiff or his agent did not hear the terms of an auction sale or hiring, or any of the conditions thereof, will not discharge the party from a compliance with such terms and conditions.
    An auctioneer in Nashville read out the following as the terms of the hiring of the slaves of Fain, to wit: “The ne-groes are not to be removed out of the county of Davidson; the person who hires them to furnish them with one summer suit and one winter suit of new clothes, with shoes and blanket each; bond with approved security required when the slaves are delivered.” Joiner, agent for Vanleer, Hicks &Co. hir,ed Philip for $140; Joiner testified that he did not hear any restrictions as to how or where the slave was to be employed. The following instrument was executed for the hire: “On or before the 25th day of January next, we promise to pay Sam. Seay, agent, one hundred and forty dollars, for value received, January 1st, 1840: and to furnish Philip with one suit of clothes for summer and one for winter, one pair of shoes, and a blanket.
    HICKS, VANLEER & Co.
    JESSE JOINER.”
    The negro Tom was removed out of the county of Davidson, where he died, without neglect on the part of the hirer, of an ordinary disease, He was proved to be worth from $700 to $800.
    This action of trespass on the case was thereupon instituted in the Circuit Court of Davidson county, against Yanleer, by the owner of the slave.
    The plaintiff declared in trover, and there was a special count setting forth the contract and the breach thereof in the removal of the slave, and that by reason of said malfeasance the said negro Philip died, and was wholly, lost to the plaintiff.
    To this declaration there was a plea of not guilty, and issue thereupon.
    The presiding Judge, Maney, charged the jury on the above facts, that the law presumed that the contract contained the whole of the agreement of the parties, but that if there was a hiring by auction, and the understanding of the parties was that he who should bid off a slave should give his note for the price only; and if the jury should believe that at the time of the execution of said contract, it was the intention of the parties not to express the entire contract, then the legal presumption should give way. He also charged the jury that if the terms of an auction sale or hiring are duly proclaimed at the commencement of the sale or hiring, bidders are bound by the terms; they are bound to know them.
    He also charged the jury that where a person hires a slave with an agreement not to remove him out of the county, a removal out of the county is a conversion, and he becomes liable to the owner for the value of the slave, deducting the hire.
    The jury returned a verdict for the sum of $583.
    Judgment having been rendered on this verdict, the defendant appealed.
    
      A. Ewing, for the plaintiff in error.
    1. We insist that the charge of the court was wrong — 1st: because although it may be true that it is the duty of agent to enquire as to the terms of an auction, and the principal may be in fault for employing such an agent, yet this negligence would be the true subject of the action and not a violation of a contract, the terms of which were never known or agreed on by either principal or agent. The law would make the principal responsible for any contract made by his agent, within the scope of his authority, whether communicated to the principal or not; but certainly the very definition of a contract excludes the idea of its being made ignorantly.
    2. We say that the last writing is the true and only evidence of the contract. For it was made some time after the hiring, and undertakes to set forth specifically all the obligations of the defendant. It is not executed either in pursuance of the auction hiring — for the terms of the hiring require a bond and security for the hire merely, whilst, in fact, a simple writing not under seal was executed, and it undertakes to specify all the obligations of defendant. The rule of law is clear, that all negotiations or stipulations, whether written or verbal, precedent to the final contract signed' by the parties, is merged in this last instrument. See 3d Eng. C. L. Rep.; 7th Greenleaf; 8th Greenleaf.
    We say also this judgment should be reversed and arrested, because there is a misjoinder of actions. The first count is in assumpsit, whilst the second is in trover. Meigs. Rep. 469.
    
      Meigs, for the defendants in error.
   Turley, J.

delivered the opinion of the court.

This is an action of trespass on the case, for the loss of a negro, under the following circumstances:

The negro was hired, in the town of Nashville, at public auction, by the agent of the defendant. The terms of the hiring were proclaimed by the auctioneer at the time of the hiring, and were, that the hirer should give bond and security for the amount of the hire, and the requisite clothing, and that the negro should not be removed out of the county of Davidson. The agent executed the note in pursuance of the terms of the contract, but not specifying therein that the negro was not to be removed out of the county. The negro was, subsequently to the hiring, removed out of the county of Davidson, into the county of Dickson, and employed at the iron works of the defendant, where, in the course of the year, he sickened and died. The agent swears that, at the time of the hiring, he did not hear the auctioneer’s proclamation of the restriction upon the removal of the slave out of the county. Upon these facts, there was a verdict and judgment for the plaintiff, and, we think, correctly.

It is no defence that a person, buying or hiring at auction, did not hear the proclamation of the terms of sale or hiring, provided the same were publicly made; for it is his business, if he did not hear them, to inquire what they are — otherwise, the terms and conditions of auction sales might be always defeated. But it is further argued that, inasmuch as the nóte was executed for the price of the'hire, it must be-presumed that it contains all the terms of the contract, and thát no parol proof can be heard to add to its obligations.'

We cannot maintain the correctness of this argument.— There are two terms of the contract; one, that a note for the hire, with bond and security, should be given, and the other, that the negro should not be removed from the county. One of the terms the defendant complied with — the execution of the note — the other, the non removal of the negro, he did not. It never was the intention that the note should contain a specification that the negro was not to be removed from the county of Davidson, and there is no necessity that it should.

Let the judgment of the Circuit Court be affirmed.  