#### JESSE WARTERS *vs.*NANCY HERRING.

Where a party was to come within a few days with a note and surety for the hire of a slave for the next year, and he postponed the performance of this part of the undertaking, from some time in the last week of December, to the 10th of January, the owner was not bound to keep the slave for him any longer, and was in no fault in then hiring him to another person.

This was an aotioN oh the case, tried before bis Honor Judge Ellis, at tbe Spring Term, 1854, of Lenoir Superior Court.

Tbe defendant agreed witb tbe plaintiff to hire to him a negro slave at tbe price of $67, for tbe year 1853, beginning witb tbe 1st of January, be, first giving her a note for that sum witb two individuals named, (Fields and Waters,) as sureties, and this was to be done within a few days. Tbe agreement took place some time in the l&st week in December, 1852. On the 10th January following, Mrs. Herring hired tbe slave to another person ; and on tbe 11th, the plaintiff tendered her a note witb tbe surety agreed; on but having parted witb tbe slave as above stated, she declined receiving it. It was proved that one of tbe proposed sureties was out of tbe county for five or six days about the 1st of January. It was also proved that persons in that neighborhood having slaves to hire out, usually did so about the first of January.

Tbe Court was of opinion that a fair interpretation of the contract between the parties was, that tbe plaintiff should execute tbe note within a reasonable time from the agreement spoken of, so as to give the defendant an opportunity to hire the slave to some one else for the year, in case the plaintiff did not comply; and not having complied with his part of the agreement before the 10th of January, his delay was unreasonable, and the defendant was not bound to keep the slave for him any longer. So that the plaintiff had no cause of action against the defendant.

Under this instruction, the jury gave a verdict for the defendant.

*47Rule for a *venire de novo.*Rule discharged. Judgment and appeal.

No counsel for the plaintiff.

*J. W.*Bryan, for the defendant.

Battle, J.

The construction put upon the contract between the parties, by his Honor in the Court below was undoubtedly correct. The bargain having been made during the fast week in December, for the plaintiff to take the slave on the first day of January ensuing, the *“*few days” allowed him within which to prepare the note with certain named sureties, (which he was first to give,) could not reasonably be extended to the 10th day of January, when it might have been too late for the defendant to find another hirer for her slave. The absence of one of the sureties from the county was no excuse for the plaintiff, as it did not appear that the defendant caused, or even knew of it. Having waited until the 10th, and finding the plaintiff still in default, how could she know that he would comply at all with the terms agreed upon? If either party had a right to sue for a breach of the contract, it was the defendant herself, but she was not bound to do so. She took the more prudent course, instead of going to law, of treating the contract as a nullity and hiring her slave to another person. The law was correctly administered in the Superior Court, and the judgment must be affirmed.

Pee CubiaM. Judgment affirmed.