Opinion
(December Term, 1837.)
The death of the master excuses the performance of the covenant for teaching, boarding, c. required to be inserted in the indenture of apprenticeship; but if he covenant to do a collateral act, as to give the apprentice a horse, his executors are bound to perform it.
A master has the whole term of apprenticeship to perform his stipulation to teach the apprentice; and if he dies without performing it, but so long before the expiration as to leave time for performance had he lived, no action lies for a breach of it.
THIS was an action of COVENANT, brought for the benefit of an apprentice against the administrators of his master, upon an indenture of apprenticeship, containing, besides the usual stipulations on the part of the master, one that he should give the apprentice "at freedom one horse worth fifty dollars over and above what the law allows." The deed was executed in 1820; the master died in the fall of 1823; and the apprentice came of age in the fall of 1827. The plaintiff assigned five breaches, to wit, —
Burton and Caldwell, for the plaintiff.
Swain, for the defendant.
1st. That the apprentice was not learned to read and write in the lifetime of the master.
2nd. That the apprentice was removed out of the county in the lifetime of the master.
3d. That after the death of the master the apprentice was not properly clothed and fed.
4th. That after the death of the master, the apprentice was not learned to read and write.
5th. That after the death of the master, and when the apprentice came of age, his freedom suit, and a horse worth fifty dollars were not delivered to him.
Plea, performance.
On the trial at Rutherford, on the last spring Circuit, before his Honor Judge PEARSON, the plaintiff proposed to introduce evidence in support of the third, fourth, and and fifth breaches, but his Honor was of opinion, "that no breach after the death of the master could be supported; that from the nature of the subject-matter of the contract, it terminated by the death of either the apprentice or the master; that the representative of the master was not entitled to the services of the apprentice and was not bound to carry out the covenant; and had acted right in refusing to have any thing to do with him." The plaintiff then proposed to prove that the master had removed from the county of Rutherford, and carried the apprentice with him; but the Court was of opinion that this breach could not be sustained, as there was no stipulation to the contrary in the covenant.
The plaintiff then proved in support of the first breach, that the apprentice was not able to read or write, and barely knew his letters. The defendant, for the purpose of showing that the master in his lifetime had evinced no disposition to break this part of his covenant, then proved that the boy had been sent to school by him some few weeks; that he was small and sickly, and not well able to work.
His Honor charged the jury, "that it was the province of the Court to put a construction upon the covenant; and that it did not require the master to learn the boy to read and write at any particular time of the apprenticeship, but allowed him the whole period to perform this stipulation; and if they believed there was reasonable time after the death of the master in 1823, before the boy's arrival at age in 1827, in which to have learned him to read and write, then there was no breach in this respect in the lifetime of the master: that the master had his election to learn the boy to work first and then to read and write, or to learn him to read and write first, and then to work: and that by his death the contract was terminated; and unless there had been a breach in his lifetime, the plaintiff was not entitled to recover." The defendant had a verdict; and the plaintiff appealed.
— We have examined this case; and we are of opinion, that the judge was correct as to the law upon each and every point decided by him, except one. The covenants which the law required the master to enter into, and which this indenture contained, were, as we think, discharged and released by the death of the master. But we see that Harman, the master, in this deed agreed to do a thing, at the coming of lawful age of the apprentice, which the acts of assembly (1 Rev. Stat. c. 5, sec. 3,) did not require him to covenant for in the indenture. He agreed "to give him" (J. Halford,) "one horse worth fifty dollars over and above what the law allows." The administrators of the master cannot plead the act of Providence, the death of the covenantor, as a discharge of this undertaking, as he well might, in not himself complying with those stipulations which the act of assembly had actually required the master to covenant for, and the master himself to do and perform, or have performed, during the time the relationship of master and apprentice continued. That relationship was dissolved by the death of the master. This isolated covenant to furnish the horse worth fifty dollars, rests on the footing of any other undertaking by deed that a man will do a particular thing, lawful in itself, at a future day. If the man who thus covenants dies before the day of performance, the obligation to do the thing or have it done, devolves upon his personal representative; and if he fail, the law will give the covenantee his action to recover damages. We therefore are of opinion, that a new trial must be granted.
PER CURIAM. Judgment reversed.