#### Mitcherson *et al vs.*Dozier.

Chancers* Case 13

Error to the Caldwell Circuit; Shackleford, Judge.

*Contract.*Consideration, *failure of. Obligor and obligee. Injunction. Damages.*

November 10.

Chief Justice Robertson,

delivered the opinion of the Court.

The heirs and personal representatives of E. Mitcherson, deceased, filed a bill in chancery, to injoin a part of a judgment, for $123, obtained against them by James I. Dozier, on anoteex*54ecutecl by their ancestor and intestate. The injunetion was accordingly granted, and Dozier answered.

If a personwho ishidievted for a crime employ alawccutehisnote for the awi'-.unt of the before'iih'trlai, commit suicide, the *55lau~ pe,rforia principal aerIhe° ^’fwhiol‘ executed, (to-wit: the de*bc his is no ground for impeachment inc°of,<yTM’ note cither at or in caule^the^on performance resulted from hifns0fif°b!is°r

*54it seems from the record, that E. Mitcherson had employed Dozier as an attorney and counsellor at law, to defend him against a criminal prosecution, and gave him as a fee, the note on which the judgment was obtained; that Dozier attended the court at which the trial was expected, but the prosecution abated by the suicide of the accused. lienee the plaintiff insists that there is a partial failure of consideration, and on that ground the bill was filed.

On the hearing, the bill was dismissed, and flic injunction was dissolved with damages. That decree is now called in question.

It is manifest that the principal service, the expectation of which induced the execution of tiie note, was never rendered; and that consequently, to that extent, the obligor was never beneiitted, nor was lie (as to that) subjected to loss labor or inconvenience.

But tlie promise to perform the service, was the consideration of the note. The performance was not a condition on which the obligation of the note depended. A suit could have been maintained on the note, even if Dozier had refused to perform the service which he promised to perform. But if by any act or omission on bis part, without the default of the obligor, the stipulated service had not been rendered, there would have been a partial failure of consideration, for which the chancellor might have given relief to the proper extent, against the legal obligation of the note. The law would not, however, imply any condition in the contract, that the promised service was to be performed before the noic was due and collectable. Nor would cither law or equity exonerate the obligor from the payment of the note, or any part of it, merely in consequence non-performance by the obligee, when he was ready and willing to perform, (as he appears *to have*been,) and was prevented by the voluntary act of the ob%or- The obligation could not thus'be impair-e(1<> nor ^le contract be thus modified without the assent, or fault, of the obligee.

*55When bill 'nnction a"' part of a judgment only^to give, of th/injunction, ten per amountof the judgment, is erro1'-

When defen dant in answer, waives his *°n llai?" solution ofirfjunction, {,ber„0 decree for damages ”n fhe dis-Injunction.

If *the*obligor bad died a natural death, the case might (perhaps,) be different. But we cannot decide, that suicide is not a voluntary act, or.that it is, *per se,*evidence of mental derangement, or, of a fatal cessity; and one party cannot, by his own voluntary act, deprive the other of the benefit of his contract. We cannot distinguish between *the principle*of this ease and that of Hickman *vs.*Major.

It seems, therefore, that, if the performance of the promised service had been the sole and entire consideration of the note, there would not have been a fail-*me*of consideration, available by plea to the action on the note: and, in such a case,we know of no principle of equity which would authorize any relief in chaneery. There lias been no failure of consideration, because the non-performance complained of, has re-suited from the act of the obligor, without the concurrence, or delinquency, of the obligee who would iiave performed his undertaking, if he had not been prevented by the act of the obligor.

There is, therefore, no error in the dissolution of the injunction, unless the case could be tested by the principles of casuistry or honor, and not by *the fixed*rules of law and equity.

But the decree for damages is erroneous. 1st. bill asked an injunction against only a part of the judgment, and 10 per cent, damages have been given on the whole amount of the judgment. 2nd. The defendant,by his answer, expressly waived his right to damages; believing, as he seemed to do, that the case is a hard one, and that the amount of his judgment *was the*maximum which his conscience would allow him to exact, or receive. Now, alt hough the statute peremptorily directs a deci’ee for damages on the dissolution of such an injunction, it does so only, because the defendant is entitled to them. But, surely he can release, or waive, such a right as well as any other; and when he does so, the chancellor should not, against his will, force him to take damages.

Wherefore, so much of the decree, as dissolved the injunction, is affirmed; but so much thereof, as awarded damages is reversed. It is, therefore, ordered, and decreed that the injunction be clissolv*56ed without damages, but with costs in the circuit court, and under all the circumstances, it seems to the court, that there should be no decree for costs in this court.

DISSENT.

*Judge Underwood*

*dissenting from the majority of the court, delivered his own opinion as follows:*

*It*is my opinion, that the injunction in this cause should have been perpetuated. The defendant admits that the services actually rendered by him,were worth no more than $20 ; but he insists, he is entitled to the whole fee, because he was ready to perform the balance of the service contemplated at the time the obligation was executed, and would have done so, had he not been prevented by the conduct of the testator of the plaintiffs in error. It appears, from the pleadings and admissions on record, that E. Mitcherson being indicted for forgery, employed Dozier, an attorney at law, to defend him, and executed his note for the fee during the Fall term, that Dozier attended court at the Spring, term, ready to defend, but that Mitcherson failed to attend having *killed himself*between the execution of the note and the trial.

Dozier insists, that it was Mitcherson’s fault, by taking his own life, that prevented the performance of the balance of the service which he, as counsel, could otherwise have discharged at the Spring term, and therefore, it should be taken, that he had performed. I admit the general rule that, if either party to a contract, by his fault; prevents the other from performing, it furnishes an excuse for the non-performance which will be as good as the performance to entitle the party so prevented, to his action. I am, also, willing to allow, that if Mitcherson had appeared in court at the Spring term, to answer the •indictment, Dozier would have exerted his best tal<ents4n the defence. But, still I am unwillingly con-sidering the circumstances of this base to decree money to Dozier, which he himself acknowledges,-was never earned and now never can be. If Mitcherson •had died a natural death, surely Dozier would not have been entitled to the whole fee. *Actus Dei ladit*
      *57
      *nenini.*If the maxim is true, that the act of God shall work injury to no man, it seems to me that it would be a violation of the maxim to permit Dozier to profit without labor, or expense, and to inflict a correspondent loss upon others, in case Mitcherson had come to his death in the ordinary course of age and decay,' or, by sudden disease or accident. If all this be conceded, yet it may be contended that the maxim quoted does not apply to the case of *ajelo de se,*and as it is admitted that Mitcherson killed himself, it- may be urged that his death was voluntary, and therefore, it makes out an excuse for Dozier equivalent to his performance. It has always presented to me a question of difficulty, whether any one could be considered of sane mind, who voluntarily takes his own life. Without deciding that a person who violates the first and paramount law of nature by laying violent hands on his own life, must be insane, it may, I think, be safely affirmed that it requires powerful excitement to prepare the mind for such an act, and that under the state of feeling necessary to induce the deed, the faculties of the mind are not in a natural condition, and consequently, that a *jelo de se*is not in tiie general capable of reflecting and reasoning with that degree of perfection which he would, if laboring under no such unnatural excitement. It frequently happens, that those who take their own lives are absolutely deranged. Now, it seems to me, that if Mitcherson took his own life in a fit of derangement, it may have been done under such circumstances, as that the act would be no more chargeable to him, than .if he had died a natural death. It does not appear, tinder what circumstances Mitcherson took his life. It is admitted, that he killed himself, and that is all. The failure of the consideration is shewn by the death of Mitcherson, admitted in the answer, and if his death took place under such circumstances as to entitle Dozier to his full fee, I think he ought to have shewn it. He has not done so.

But again, could Mitcherson be in default for not appearing in court at the Spring term, when he was dead? Will his recognisance be forfeited and his executor, or his bail, be compelled to pay the mo*58ney if he committed suicide, without the least puliation arising from the condition of his mind? I am disposed to think, that his death, without regard to the manner of it, discharges the recognisance and releases his bail, and Í am, likewise, inclined not to consider the manner of iiis death, and seize on that as shewing no failure of consideration, when if he had died a natural death, it would, in my opinion, be a clear case. I do not regard the case as the same in principle as that of Majors vs. Hickman, II. Bibb, *216.*I therefore dissent from the opinion-delivered.