
    Price vs. Allen.
    1. A sealed agreement, intelligible in itself, complete in its terms, and without, uncertainty as to its object or extent, is presumed to contain the final intentions of the parties, and all proof of declarations made at the time of the execution of the agreement, or before or after, tending to vary the terms of such agreement, is inadmissible, and, if admitted, the court is bound to exclude it on the application of the party aggrieved at any time before the jury retire from the box.
    2. An agreement was as follows: Allen agrees to give Price the use of Elleck, from April to December. Price agrees to deliver to Allen, a mule of the value of sixty dollars for the use of Elleck. The right of said mule is to remain in said Price until the work is done and the time expires. This agreement imposes an obligation on Price to retain the _custody and control of the slave, and the hiring of such slave to another person is a violation of the agreement, and a conversion of him for which he was liable to the extent of the value of such slave and interest, in case of his death.
    Allen brought an action on the case against Price, in the Circuit Court of Obion, for the value of a slave. Plea not guilty. On the trial, before Judge Fitzgerald and a jury, it appeared that an agreement was made, signed and sealed, between the parties, that Price was to have the use of the slave Elleck, belonging to Allen, from April to 25th December, and that Price was to furnish Allen with a mule of the value of sixty dollars during the time of the hiring. Price hired the slave to Edwards, in whose possession he died. It was the oral understanding of the parties that the slave was to be worked on the farm of Price. There was testimony as to declarations of the plaintiff and defendant on the ¡subject of the hiring.
    After commencement of the argument of the case, the counsel for defendant moved the court to withdraw from the consideration of the jury, all the evidence on the subject of the agreement of hiring except the written instrument itself. The court refused to do this.
    The court charged the jury that if there was an agreement between the parties that the negro should be employed on the farm of the defendant in Obion county, and the defendant afterwards hired the slave to Edwards to cut wood on the Mississippi river, that would be a conversion of the slave, and the defendant was liable. He also charged that if the hiring was general, and the defendant hired the slave to another and lost thereby all control over him, it was a conversion, for which he was, in the event the slave was not returned to the proper owner, liable. There was a verdict and judgment for the plaintiff. Defendant appealed.
    
      Cochran, for the plaintiff in error.
    The general hirer of a slave is the owner for the time and is bound to such care as men of common prudence take of their own slaves; Story on Bail. 261, 262, and 263, and 264. This is the general.rule as applicable to other property, and I am not aware of any change in the rule with respect to slaves. The cases of Angus vs. Dickinson, Meigs 468, Branch vs. Horsely, 1 Hum. 199, and Yanleei vs. Fain, 6 Hum. 104, are relied upon by the defendant in error, but they all recognize the general rule as above stated; also 8 Hum. 428. In these cases, however, there were special stipulations in the contract of hiring. In the first, the slave was to be employed to drive the party’s wagon. In the others there were special prohibitions. In the one, that the slave was not to be employed in or about the water; in the other, that he was not to be removed out of the county; and in all, these special stipulations were violated, and the court holds such violation of the express agreement to be a conversion of the property. If the hirer of slaves is governed by any other rule than that which governs the hirer of other property, I have not been able to find it declared. If slaves are a peculiar species of property, they have peculiar powers to protect themselves. They have intelligence and judgment to discover dangers and avoid them, and to complain to their owner of any abuse or ill treatment they may receive. If because' they stand higher in the scale of being than dead matter and dumb animals, they deserve more tender and humane treatment, this very fact is a guarantee that they will receive such treatment. It is not a good reason for restraining the hirer of slaves, by rules so stringent that he cannot employ them in any service, for himself or another, in which a man of common prudence would employ his own slave. If the letter to hire wishes to restrict the employment of his slave to a particular kind of service, or to exclude a particular service, he can easily do so by the contract, as in the cases above referred to. In this case, the plaintiff in error insists that the hiring was general, without any restrictions in the contract. It is certain that the writing made by the parties is a general hiring. But the judge in his charge to the jury places a general and special hiring on the same ground. If the jury had believed that the hiring was general and without restriction, they could not have found for the plaintiff in error, without violating the instructions of the court.
    
      W. R. Harris, for the defendant in error.
    The proof shows conclusively that Price hired the negro in controversy, from Allen to work on his (Price’s) plantation, in Obion county, and "that Price afterwards hired him to’ Edwards, to work at his wood-yard on the Mississippi river. This was a conversion of the negro, and Price was liable for his value; although, he was afterwards lost by inevitable casualty, Angus vs. 
      Dickerson, Meigs’ R. 458; Horseley vs. Branch, 1 Hump. R. 199; Gain and Horn vs. Kelly, 4 Hump. R. 472; Van-leer vs. Fain, 6 Hump. R. 104. But it is insisted that the Circuit Judge erred in not withdrawing from the jury the parol evidence of the special hiring; this objection is not well taken for the reason, first, the testimony had been permitted to go to the jury without objection, and it was too late, after two of the counsel had addressed the jury, to call upon the court to withdraw it; second, the testimony was competent if it had been objected to at the proper time; Vanleer vs. Fain, 6 Hump. R. 104; Dick vs. Martin, 7 Hump. 263. The next objection is that the counsel of the plaintiff in error requested the judge to charge the jury that “if the hiring was a general hiring, that in that case the defendant would have a right to hire said negro to said Edwards, and that such hiring would not be a conversion.” This the court refused to charge, but charged “that if the hiring was a general hiring, yet the defendant would not have a right to hire him to Edwai’ds for the entire time so as to lose all control over him.” In this charge I insist there is no error. The hirer of a slave takes upon himself a personal trust, and the presumption is he wants him for his own use and service, otherwise he would not hire him, nor would the owner agree to let him have him; for I would be very willing to hire my slave to A, knowing him to be a prudent, humane man, when I would utterly refuse to hire him to B, knowing him to be in every particular the reverse; then if A hire him to B to work for him, this would be a different use; it would be using him for a different purpose, and in a different manner, from that which was intended by the parties; and A would be responsible for all damages, and if a loss occurs, although by inevitable casualty, he would be responsible therefor: Story’s Com. on Bail, p. 272, see. 413; Jones on Bail. 68, 69, 121; 2 Lord Raymond 909, 917. “Slaves are a peculiar. species of property; a property in intellectual and moral and social qualities, in skill, in fidelity and in gratitude, as well as in their capacity for labor.” Henderson vs. Vaulx and Wife, 10 Yer. R, 27, 38, 39; State vs. Thompson, 2 Tenn. R. 96. Principles applicable to this peculiar property must be adopted and enforced: Story on Bail. p. 368, sec. 577; Boyce vs. Anderson, 2 Peters’ Sup. Court R. 150. Every principle of sound policy, prudence and humanity, forbid the idea that a general hirer shall have the right, without first obtaining the consent of the owner, to rehire a slave; if he can hire him to one person he may to any person, at discretion; he might hire him from the owner for twelve months for one hundred dollars, being himself a farmer and a prudent man, there being at least a tacit understanding between the parties that he was hiring for his own use, and he might the next day hire him to a steam-boat, or to an iron factory, at twenty-five dollars per month, where the owner had refused to let him go for that money, but chose, through motives of prudence and humanity, to take one hundred dollars per year from the farmer. This would be a fraud upon the owner and a conversion. But suppose this part of the charge is erroneous, it will not avail the plaintiff here; he did not except to it; the charge was upon an immaterial point, a hypothetical proposition not raised by the proof; the proof clearly establishes a special hiring, and there is no pretence from the proof that Edwards hired the negro only for a month; the,n the jury could not possibly have been misled by the charge “that in case the hiring was general and Price had hired the negro to Edwards the entire time for which he had hired him himself, so as to lose all control over him,” &c. The Supreme Court will not reverse for an error in the charge of the Circuit Judge, upon an abstract proposition in reference to which there is no proof in the record: Porter vs. Wood, Stacker & Co., 3 Ilump. R. 5 6; Webster vs. Flemming, 2 Plump. R. 518; Marr vs. Rucker, 1 Plump. R. 353; Jarnigan vs. Mairs and Winfield, 1 Hump. R. 473. It is essential to the success of a motion for a new trial on the ground of misdirection, that it should materially affect the verdict,: Graham on New Trials, 263; 10 John. R. 447; 5 Day’s R. 479 ; 5 Mass. R. 487. In ordinary cases, notwithstanding a misdirection, if the court see that justice has been done, and a new trial ought to produce the same result, a new trial will not be granted: Graham on New Trials, 301; 2 Salk. 644, 646.
    
      Gibbs, for the plaintiff in error.
    1. The court erred in not rejecting the parol evidence which varied the contract. 7 Hum. 188; 3 Hum, 162. The objection that the motion to reject or withdraw the evidence was during the argument, cannot be seriously pressed; the practice is too well settled. 7 Hump. 188.
    2. The charge that if the hiring was general, yet that the sub-hiring was of itself a conversion, is believed to be erroneous.
    In this species of bailments the owner parts with his property for the term agreed upon, and he is entitled to the hire; and it is upon this principle that the bailee is bound for doctor’s bill, loss of time, if sick, &c. Story on Bail. 364, 371, 385, 394; 2 Kent, 164. The bailee is only bound to use ordinary diligence: Case of Angus vs. Dickerson, Meigs’ R. 460, which is relied upon by the other side, but which is a case of special bailment, cannot be authority to sustain the charge of the court.
    When the authorities speak of bailments being matter of trust, they only mean that the bailee is bound to due diligence in preserving and restoring .the thing bailed to the owner at the expiration of the time for which it is bailed.
   McKinney, J.

delivered the opinion of the court.

This action, in which are joined counts in trover and case, was brought by the defendant in error, in the Circuit Court of Obion county, to recover the value of a slave delivered into the possession of the plaintiff in error under an agreement, in writing, sealed by the parties, of which the following is a copy, viz:

“An article of agreement between Gideon Allen of the first part, and William Price of the other part; said Allen, on his part, agrees to give the said Price the use of a negro boy, Elleck, from this time until Christmas; and the said Price, on his part, delivers to the said Allen, one mule, of the value of sixty dollars, as compensation for the use of' said negro. The said Price is to-find two suits of Rummer clothing for said boy; the right of said mule to remain in said Price until the work is done and the time expires. Given under our hands and seals this the 11th day of April, 1846.

“Gideon Allen, [Seal.]

“William E. Price.” [Seal.]

“Test. — E. Y. Shuck, . .

Thomas M. Price.”

The proof shows, that said slave was delivered to the plaintiff in error immediately after the execution of the foregoing written agreement. It farther appears, that the plaintiff in error retained the slave in his own possession and service until after his tobacco crop was gathered; and then hired said slave, till Christmas, to one Edwards, who took him near to Mills’ Point, on the Mississippi river, about twelve miles distant from the residence of the plaintiff in error; and while at work there in the service of Edwards, the slave became sick and died. On the trial, evidence was introduced by the plaintiff, of a verbal agreement between him and Price, made on'the day previous to the execution of the written contract and the delivery of the slave, that the slave was to be employed by Price in working on his farm, in Obion county. The admissions of Price to that effect, and that he was forbidden to hire the slave to another were also given in “evidence by the plaintiff.

During the argument of the cause before the jury, the defendant’s counsel moved the court to withdraw from the jury all the evidence in reference to the hiring of said slave, except the foregoing written agreement; but the court refused to do so. The Circuit judge instructed the jury, in substance, that if the slave were hired to the defendant to work on his farm, in Obion county, and he afterwards hired said slave to Edwards, to cut wood on the Mississippi river, this would be a conversion of the slave by the defendant. And, further, that if the hiring were general, yet the defendant would not have a right to hire the slave to Edwards, for the entire time for which the defendant had hired him, so as to lose all control over him.

The jury rendered a verdict for five hundred and ninety-four dollars' damages, which the court refused to set aside, and the defendant appealed in error to this court. The errors relied upon are. first, the refusal of the court to«exclude the parol evidence from the jury; and second, the instructions to the jury, that the hiring of the slave, by the defendant, to Edwards, was a conversion.

1. We are of opinion that the court erred in refusing to exclude the parol evidence which had been permitted to go to, the jury. The written instrument above set forth, upon its face, imports a legal obligation, containing the terms of the contract between the parties, intelligible in itself, complete in its terms, and without any uncertainty as to the object or extent of the agreement; it is therefore presumed, to contain the whole agreement and undertaking of the respective parties, and that it was' designed to be the evidence of their final intentions; and all oral testimony of previous conversation between the parties, or of declarations at the time when it was executed, or afterwards, tending to substitute a different contract, was inadmissible, and ought to have been rejected. In the application of this principle, it is unimportant at what time during the progress of the trial, the objection may be taken, or as to the mode of taking it. It may be, that, in particular cases, the force of the objection cannot be made manifest until opportunity, is afforded the party to be prejudiced, of introducing his evidence. And even though no objection be made when the illegal evidence is admitted, yet it is competent to the party to be affected thereby, at any time before the retirement of the jury from the box, to call upon the court to exclude it from the consideration of the jury; and if the objection has not been previously waived by some affirmative act of the party, it will be error in the court to refuse to do so.

2. In reference to the question, whether the hirer of a slave, in a case of general hiring, is at liberty to transfer the possession and control of the slave to another by sub-hiring, without the knowledge and assent of the owner, no decision is called for upon the proper construction of the written contract between the parties in this case. It may not, however, be improper to remark, that we are not aware of any authoritative adjudication, expressly upon the point, in this State; and when properly presented it will be a question worthy of grave consideration, whether, in respect to slave property, such right on the part of the general hirer, can be maintained either upon principle or authority.

We think the proper meaning and construction of the written contract between the parties in this case were mistaken by his Honor, the Circuit Judge. It does not import, in its terms, a general hiring, as seems to have been assumed; but a delivery of the slave to the plaintiff in error, for a limited period to the personal use of the latter. The language of the contract is not that the owner, in general terms, hires the slave to Price, for a certain time, the effect of which would have been to vest him with all the rights of a general hirer, whatever they may be; but on the contrary to give the use of the slave to Price till Christmas; and for such use Price stipulates to deliver to the owner a mule worth sixty dollars. This language clearly imports a personal obligation and trust, on the part of Price, that he should retain the possession, control, and use of the labor of the slave during the entire period limited in the agreement. This is still more apparent from the stipulation on the part of Price, that he was to retain the legal title to the mule, to the end that he might be made sure of the services of the slave for the period of time agreed upon; or, if otherwise, that he should not be liable for the hire. This stipulation clearly indicates that it was not understood or intended that Price should stand upon the footing, or be held to the responsibilities of a general hirer; who is liable for the hire,, although he may not enjoy the services stipulated for, unless otherwise agreed upon by the parties. Upon this construction of the written contract, it results, that Price had no authority to hire the slave to Edwards; and that in doing so he Was guilty of a conversion of the slave, and of course liable in damages for his reasonable value with interest thereon, as increased damages, from the time of the conversion, if deemed proper by the jury, under all the circumstances of the case.

The judgment must be reversed, and the cause remanded for a new trial.  