B. J. Pridgen, Guardian, &c., v. F. M. Buchannon and others, 27 Tex. 589

Moore, J. This is the second time that this case has come before this court on the appeal of Pridgen, the plaintiff in the court below. On the former appeal, the judgment was reversed on account of erroneous instructions given to the jury. (24 Tex., 655.) It must be again reversed for the same reason. In the first instruction given by the court, the plaintiff’s right to recover was made to depend upon its being shown that the negro was to be employed, under all circumstances, in De Witt county; and that in violation of such understanding, the defendants removed her to another more unhealthy locality.

This instruction is more stringent against the plaintiff, Pridgen, than the facts of the case or the previous opinion of this court justify or sanction. By the charge the defendants were entitled to a verdict, unless there was both a violation of the contract, and the life of the negro was put in more hazard than was contemplated by the contract.

In the second branch of the charge, the jury were directed to find for the defendants, if they believed it was within or not contrary to the contemplation of the parties for the defendants, under certain circumstances, as a failure of crops in De Witt county, to take the negro to Caney, or other place to pick cotton, and the negro had received every attention, &c.

From this charge the jury may have inferred, if the negro could, in contemplation of the contract between the parties, have been carried from De Witt county to any other place to pick cotton, then this could be done, also, to Caney, without reference to the health of this particular locality.

This charge is also objectionable from its tendency to lead the jury to infer that the failure of crops in De Witt county might, to some extent, enlarge the authority of the defendant to employ the negro in some other locality, although there is nothing in the testimony from which it can be supposed that such a circumstance was within the contemplation of the parties at the -time of the hiring, We may here remark, the exception of the plaintiff to the testimony showing the failure of crops in De Witt county should, for the same reason, hate been sustained.

The whole scope and tendency of the charge was to confuse the jury, and mislead them from the true and leading issues in the case. Especially must we so conclude when we consider, in connection with the instructions l|iven by the court, the refusal to give those asked by the plaintiff, which were clearly applicable to the facts, and in strict accordance with the previous opinion of this court. There was no evidence of a special contract between the parties, defining the place or character of employment-in which the negro Was to be engaged.

The jury were, therefore, to be guided, in ascertaining these facts, by considering the time, place and circumstances of the hiring; the character of the property, and the occasion of its hiring; the residence and occupation of-the parties at that time; the distance to which the negro was removed, and the additional danger to her life and health, if any', thereby incurred ; and from all these circumstances, they should determine whether the negro was employed in a -different or more hazardous manner than it is fairly to be inferred, was within the contemplation of the parties at the time of making the contract.

There was no error in overruling the exceptions of the plaintiff, Pridgen, to the special answer of the defendants Stubbs and Cage, alleging that they were only sureties with their co-defendant Buchannon, on his note for the hire of the negro, and not joint contractors with him in the hiring; and that they were not, therefore, liable for the damages which Pridgen may have sustained by the conversion or misuse of the negro by Buchannon.

Without explanation the note may import that all of the payers- were joint contractors for the services of the negro; but, without violation to its language or legal import, it is equally susceptible of the construction, that they were merely jointly and severally bound for the amount agreed upon between the parties to the contract of hiring for such services. In other words, it may be said that the instrument in writing does not embrace, nor was it intended to embrace the contract for the hire of -the negro, but is inerely the consideration upon which the contract was founded.

If this is so, the answer does not contradict the written instrument, hut enables the court, in view of all the facts of the case, to determine its true import and legal effect. The judgment is reversed and the cause remanded. Beve'rsed and remanded.