Saffold, X
-This writ of error was prosecuted for the revision of a decree of the Circuit Court of Franklin, dismissing the bill at the cost of the complainant Isbell; in which decree there is charged to be error.
The object designed and effected by the bill was to obtain an injunction against a judgment at law, rendered against Isbell on a bond for .$200, executed by the complainant and Robert Thompson in favor of Morris, and by him assigned to S. Bell & Co, .the plaintiffs at law. The ground of relief relied on, was a failure of the consideration of the bond.
The hearing was had on the bill, answers and proofs, from which we assume as the only facts material to be noticed — that in March, 1824, articles of agreement were entered into by Thompson and Isbell of the one part, and Morris of the other, stipulating a contract, that the latter with the assistance of his' [45] family should live at, and keep a house of public entertainment for the former, until the end of that year, and give all necessary attention to travellers, and promote as much as in his power, the interest of the house. For these services he was to receive two hundred dollars, • and for the payment of which, Is-bell and Thompson gave him their note for the amount, at the same time of the execution of the articles, payable at the expiration of the term, during which' the house was to have been kept. The bond; immediately after given was assigned by Morris to Bell & Co. The bill alleges a violation of the agreement on the part of Morris, by his continued intoxication, neglect of business, carelessness and. great waste of the liquors, &c; furnished for the use of the house by himself and Thompson; and also by his voluntary abandonment'of the house and employment, after about four days, and consequently a failure of the consideration of the contract. The bill also charges, that at the time of the execution and transfer of the bond, Morris was notoriously insolvent and has continued so; that within a few days after the transfer of the bond to Bell & Co, and before they had completed payment for rhe same, they had notice from complainant of the failure of consideration, and that the demand would not be paid; that the bond was transferred in consequence of the insolvency of Morris, and merely for the purpose of covering the debt and securing it against his creditors.'
The separate answer of Morris admits the contract as charged, but contests the failure of consideration —denies the intoxication, neglect or waste imputed to him, and contends that he performed his part .of of the contract, in taking charge of the house with the [46] assistance required, and that he properly performed the trust until Isbell became dissatisfied and directed him to cease; that he then did so with reluctance. He admits his insolvency; says it was known to Isbell when the contract was made. He denies the existence of any fraudulent intent in transferring the paper,'avering it was done to satisfy debt justly due from him, and which he describes, to nearly the amount of the bond: and that it was agreed the small balance when collected should be returned to him. He also urges in bar of the relief sought, that all the matters complained of were relied on at law, where they were properly cognizable, and after full defence so made, the grounds were found insufficient.
Bell answers for himself and partners, that the transfer of the bond was in good faith, on the consideration and for the purposes avered bjr Morris, and that all except a small portion of said consideration was paid by them for the bond, prior to the alleged notice of the consideration having failed. He disclaims any particular knowledge of the failure and requires proof of the fact: he, also, in like manner with Morris insists on the benefit of the decision at law, in bar of relief sought in chancery.
The proofs on the part of label, the complainant, consist of the testimony of A. Twetty and wife, the latter of whom, as respects Morris’ situation and attention to the house during the few days he remained, goes far to sustain the allegations of the bill. Twetty himself no less sustains the allegations in these respects, and swears, moreover, that lie was present when Morris declined the employ ; that he did so voluntarily; and from a knowledge of his conduct while there thinks he was a disadvantage to his employers. [47] Benjamin Harris, the only witness on the part of the defendants, states nothing material; what he says of the credibility of Twetty is in terms so -vague and irregular, as to avail nothing.
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Saffold, X
-This writ of error was prosecuted for the revision of a decree of the Circuit Court of Franklin, dismissing the bill at the cost of the complainant Isbell; in which decree there is charged to be error.
The object designed and effected by the bill was to obtain an injunction against a judgment at law, rendered against Isbell on a bond for .$200, executed by the complainant and Robert Thompson in favor of Morris, and by him assigned to S. Bell & Co, .the plaintiffs at law. The ground of relief relied on, was a failure of the consideration of the bond.
The hearing was had on the bill, answers and proofs, from which we assume as the only facts material to be noticed — that in March, 1824, articles of agreement were entered into by Thompson and Isbell of the one part, and Morris of the other, stipulating a contract, that the latter with the assistance of his' [45] family should live at, and keep a house of public entertainment for the former, until the end of that year, and give all necessary attention to travellers, and promote as much as in his power, the interest of the house. For these services he was to receive two hundred dollars, • and for the payment of which, Is-bell and Thompson gave him their note for the amount, at the same time of the execution of the articles, payable at the expiration of the term, during which' the house was to have been kept. The bond; immediately after given was assigned by Morris to Bell & Co. The bill alleges a violation of the agreement on the part of Morris, by his continued intoxication, neglect of business, carelessness and. great waste of the liquors, &c; furnished for the use of the house by himself and Thompson; and also by his voluntary abandonment'of the house and employment, after about four days, and consequently a failure of the consideration of the contract. The bill also charges, that at the time of the execution and transfer of the bond, Morris was notoriously insolvent and has continued so; that within a few days after the transfer of the bond to Bell & Co, and before they had completed payment for rhe same, they had notice from complainant of the failure of consideration, and that the demand would not be paid; that the bond was transferred in consequence of the insolvency of Morris, and merely for the purpose of covering the debt and securing it against his creditors.'
The separate answer of Morris admits the contract as charged, but contests the failure of consideration —denies the intoxication, neglect or waste imputed to him, and contends that he performed his part .of of the contract, in taking charge of the house with the [46] assistance required, and that he properly performed the trust until Isbell became dissatisfied and directed him to cease; that he then did so with reluctance. He admits his insolvency; says it was known to Isbell when the contract was made. He denies the existence of any fraudulent intent in transferring the paper,'avering it was done to satisfy debt justly due from him, and which he describes, to nearly the amount of the bond: and that it was agreed the small balance when collected should be returned to him. He also urges in bar of the relief sought, that all the matters complained of were relied on at law, where they were properly cognizable, and after full defence so made, the grounds were found insufficient.
Bell answers for himself and partners, that the transfer of the bond was in good faith, on the consideration and for the purposes avered bjr Morris, and that all except a small portion of said consideration was paid by them for the bond, prior to the alleged notice of the consideration having failed. He disclaims any particular knowledge of the failure and requires proof of the fact: he, also, in like manner with Morris insists on the benefit of the decision at law, in bar of relief sought in chancery.
The proofs on the part of label, the complainant, consist of the testimony of A. Twetty and wife, the latter of whom, as respects Morris’ situation and attention to the house during the few days he remained, goes far to sustain the allegations of the bill. Twetty himself no less sustains the allegations in these respects, and swears, moreover, that lie was present when Morris declined the employ ; that he did so voluntarily; and from a knowledge of his conduct while there thinks he was a disadvantage to his employers. [47] Benjamin Harris, the only witness on the part of the defendants, states nothing material; what he says of the credibility of Twetty is in terms so -vague and irregular, as to avail nothing.
Under these circumstances was the complainant entitled to relief in chancery, or was the hill correctly dismissed? Morris’ services, during the short time while the engagement continued, resulting as they did in a disappointment to the complainant and Thompson, and subjecting them to the trouble and necessity of removing his family and effects from the place, and making a different arrangement (as his answer admits to have been the fact) can not be supposed to have produced a balance of profit to the employers. If, therefore, Morris had materially violated the con-, tract, or voluntarily abandoned it, he 'had no legal or equitable demand for compensation. If, on the contrary, he had complied with the agreement during the time, and was forced by the other parties to decline the situation, from the force of the contract, the services rendered, the inconvevience and disappointment produced, he was entitled to the full benefit of the contract, consequently to a recovery of the amount of the bon,d. The mutual stipulations of the parties, whether viewed as dependent or independent covenants, would be subject to the same rules. Nor is it material to decide whether the proofs sufficiently establish the fact, that Morris had so violated' the agreement on his part as to authorise the employers to rescind it, as alleged, in the bill, and denied in the answer. In either case it was a matter of proper legal cognizance. If complainant was warranted in rescinding the contract, he did what was requisite on his part in due time, by discontinuing the engagement, [48] and giving , notice to the assignees that they might look to their safety. If at the tinie of giving the bond, it was agreed and understood by the parties in interest, that the same should be immediately transferred to Bell & Go, to answer other purposes, and that the same should be paid in any event, that, as well as the other features of the case, was a proper subject for the consideration of the jury. Would the complainant object that error or injustice was done him in the trial at law? The answer is that he should have sought redress at the trial by excepting to the opinion of the Court, or by motion for a new trial, as the case au thorised. E very material fact in favor of the complainant, was alike susceptible of proof at law ; if he did not make the proofs, or having made them, did not claim or could not obtain the benefit thereof, it was his default or misfortune. The evidence does not show a partial failure of consideration — on the contrary the complainant contended for air entire failure, so that in any view of the case, the relief, if any was allowable alone at law. Could it be otherwise considered, the complainant was equally conversant with all the circumstances pending the trial at law, while urging his defence there; and no reason or excuse is offered why he did not resort to chancery instead of litigating the claim at law. This circumstance interposes a further objection to relief in chan eery. These rules have so often been recognized by this and other tribunals, that it is deemed unnecessary to refer to particular authorities.
Let the judgment be affirmed. .
Perky, J. not sitting.