Opinion
(December Term, 1830.)
1. Where it was agreed to abide by the decision of the Supreme Court, upon a case stated, an averment of a breach of that agreement was supported by proof of the decision of the Supreme Court, upon a consideration of the whole case, although the judgment of that Court was not final, but a new trial was granted.
ASSUMPSIT upon the following written agreement:
FROM ROWAN.
"The understanding between Messrs. Thomas L. Cowan and William Davidson, relative to certain executions of Mr. Cowan's levied on certain negroes, upon which Mr. Davidson has a mortgage: It is agreed that if the lien of Cowan's executions binds the property, notwithstanding the mortgage, then Mr. Davidson is to pay off and discharge the executions creating such lien; if the mortgage be invalid then Mr. Davidson is to surrender the negroes to the sheriff of Rowan to be sold under the executions. If Messrs. A. Henderson and J. Martin disagree in their opinion, then a case agreed is to be submitted to a judge, with liberty for either party to appeal to the Supreme Court. — 26 April, 1821.
"P. S. — The above stipulations, it is agreed, shall extend and ensure to all executions now out and unsatisfied."
The plaintiff averred that Messrs. MARTIN and HENDERSON had disagreed that a case had been stated for the opinion of the Supreme Court, that the decision of the Superior Court was in his favor, and that the defendant had refused to abide by the decision, either by paying the plaintiff the amounts of his executions, or by surrendering the negroes to be sold.
Plea — general issue.
On the trial the plaintiff proved that Messrs. HENDERSON and MARTIN, having disagreed in opinion, the case of Davidson v. (534) Beard, 9 N.C. 520, was prepared to obtain that of the Supreme Court. He then produced a certified copy of the record of that cause in the Supreme Court, and proved the amount of his judgments against McCulloch. The defendant proved that after the new trial which was granted in the Supreme Court in the case of Davidson v. Beard, that case was remanded to the Superior Court of Mecklenburg, and was still on the docket of that Court. For him it was contended that the case of Davidson v. Beard, being decided on a motion for a new trial, was not a final decision of the main question between him and the plaintiff.
His Honor Judge DONNELL, instructed the jury that if the case of Davidson v. Beard was intended by the parties to be the case prepared for the Supreme Court under the contract, and if it contained the points in controversy between them, it was not material that in form the judgment of that Court should be final in that suit.
A verdict was returned for the plaintiff, and the defendant appealed.
As far as I am capable of understanding the question litigated between the parties, it is this: Whether the mortgage under which the defendant claimed, or the executions, under which the plaintiff claimed the negroes levied upon, gave the preferable title. It has been decided in Davidson v. Beard, 9 N.C. 520, the decision in which suit it appears, was to decide the controversy between the parties, that the execution levied on the slaves gave a preferable right to any claimed by the defendant under the unregistered mortgage. It is true, that a new trial was granted in that case, as the consequence of that opinion; but the question of law was completely settled, as it was decided upon a case agreed. Of this opinion was the judge below, and I think the rule for a new trial against that opinion ought to be (535) discharged.
It may have been the case, or it may be the case, if the former suit has not been decided, that the judge on the second trial may give an opinion in favor of the rights claimed under the mortgage; but such opinion is subject to the opposite party's right of appeal to this Court, where the law of the case has been otherwise held, as before stated.
PER CURIAM. Affirmed.
Cited: S. c., 16 N.C. 470.
Note: This case was decided at the last term of this Court, but it was omitted in its proper place. The reporter was reminded of it by the case of Hargrave v. Davidson, post. 535.