#### JOHN D. CLANCY v. BENJAMIN OVERMAN.

Where a party incurs an obligation by his own act, he will be bound to the extent of his engagement, and will not be excused for its non-performance by accident from inevitable necessity, as he would be, if the obligation were imposed upon him by law. And for the breach of such voluntary engagement, the extent of the injury forms the proper measure of damages, however the performance may have been defeated.

If the owner of a slave binds him as apprentice, and covenants that he shall faithfully serve his master, &c. and the master covenants to teach the apprentice a trade, these covenants are mutual and independent, and a breach on one side is no bar1 to an action for a breach on the other.

A covenant to teach an apprentice, or cause him to be taught, a trade, is not an absolute engagement that he shall at all events learn that trade, but is only a covenant for faithful, diligent and skilful instruction.

The acts and declarations of a slave-apprentice is evidence on the part of the master in an action by the owner, to show the temper and disposition of the apprentice.

This was an action of covenant brought upon the following instrument: “ This indenture, made the 22d day of January, a. d. 1827, between John D. Clancy, of, &c. of the one part, and Benjamin Overman, of, &c. of the other part; Witnesseth, that the said John D. Clancy doth bind unto the said Benjamin Overman a negro boy, named Essex, for the term of three years, commencing from the date above written, during all which time the said negro boy his master shall faithfully serve, his lawful commands every where readily obey; he shall not absent himself at any time from his said master’s service, but in all things as a good and faithful servant shall behave towards his said master: And the said John D. Clancy doth further agree to furnish the said negro boy with materials for clothing: And the said Benjamin Overman doth covenant, promise and agree to and with the said John D. Clancy, that he will teach and instruct, or. cause to be taught and instructed, the said negro boy, the art and mystery of the coach-making business; that he will sustain the expense of making his clothes, and that he will provide the said negro boy with sufficient diet and lodging. In witness whereof, &c. “ John D. Clancy, [l.s.J

“ Benj. Overman, [l. s.]

“ Test. *Jno. Conrad*

*403The breach assigned in the plaintiff’s declaration was, that the defendant had not taught and instructed, nor caused to be taught and instructed, the slave Essex, mentioned in the covenant, the art and mystery of the coach-making business.

Pleas. — Covenants performed and not broken; previous covenants not performed.

Upon the trial at Guilford, on the last Circuit, before his Honor Judge Norwood, the plaintiff offered evidence to show that the slave Essex did not understand the coach-making business at the expiration of his term of service with the defendant. The defendant, on his part, offered evidence to show that he made all proper exertions to teach the slave Essex, but that said slave had not capacity enough to learn the coach-making business. He proved further, that the said Essex, during his apprenticeship, frequently, in the absence, and without the knowledge of the defendant, would go to a neighbouring store and procure spirits, by which he would sometimes become moderately intoxicated. The defendant offered to prove further, that when he would instruct Essex about his work, and threaten to punish him if he did not exert himself to learn, as soon as he, the defendant, was absent, Essex would declare that he did care about learning the trade; it was no profit to him; and if he could avoid the lash, it was all he cared for. This evidence of the declarations of Essex was rejected by his Honor. Upon the evidence given, the defendant’s counsel insisted that, if the defendant had made every proper exertion, and the slave Essex had not capacity to learn the coach-making business, the plaintiff could not recover. He insisted, also, that the covenants of the plaintiff were precedent and dependent, and that a breach of them on the part' of the plaintiff was a valid defence for the defendant. His Honor instructed the jury that the covenants of the plaintiff were not precedent and dependent; but that the covenants on both sides were mutual and independent, and that if there had been a breach thereof by the plaintiff, it was no defence to the defendant. He also charged the jury that the covenant of the defendant was absolute, and that he could not be *404/excused from its performance, for want of capacity in the boy Essex to learn the coach-making business; but that jury might take that into consideration in estimating the damages, if they should find for the plaintiff. Under this charge a verdict was returned for the plaintiff; and the defendant appealed.

No counsel appeared for the defendant.

*W. A. Graham,*for the plaintiff, contended—

1st. That the defendant had entered into an absolute covenant that the apprentice should be taught and instructed the art and mystery of the coach-making business ; and that this covenant had not been performed, unless the apprentice had become a good workman. The stipulation contains no exceptions, nor does it simply oblige the master to *endeavour to teach,*or to instruct *in*the art of coach-making; but positively undertakes that he shall be taught the trade. This not having been done, the master is not excused by want of capacity in the apprentice, or any other of the circumstances exhibited by the evidence, though they were properly considered in estimating damages. Where the law imposes a duty which it becomes impossible to perform, the non-performance is excused; but where a party covenants to do a particular thing, and receives a reeompence therefor, he is responsible in damages for a failure, although it be impossible. *Parodine*v. *June,*Aleyn, 26. *Monk*v. *Cooper,*2 Ld. Ray. 1477. *Appleton*V. *Bink,*5 East, 148. *Shu-brick*v. *Salmon,*3 Burr. 1637. 1 Sel. N. P.

2dly. The jury were properly instructed, that the covenants in apprentice bonds are mutual and independent. *Winston*v. *Linn,*4 Eng. C. L. Rep. 131. This is the more particularly true where the apprentice is a slave, and the authority to enforce obedience is almost unlimited.

3dly. The idle declarations of the slave, made to the other apprentices when the master was absent, and which do not appear ever to have come to his knowledge during the apprenticeship, were properly rejected as *res inter alias acta.*In *Winston*v. *Linn,*the declarations of the *405apprentice were admitted, but only those made in the presence of the master.

Gaston, Judge.

— There is a well known distinction between obligations imposed by the law, and those created by express contract. When the law imposes a duty, and the party charged is disabled to perform it without any default in him, and he has no remedy over, the law will *excuse*him; but when the party, by his own contract^ imposes unconditionally a duty or charge upon himself, he is bound to perform it, or answer in damages for its non-! performance, notwithstanding any accident by inevitable necessity. In the latter case, the contract constitutes the law between the parties, and if it contain no exception, none will be presumed. This court agrees, therefore, with the judge below, in holding that the engagement of the defendant was absolutely binding to the extent of that engagement; and it is also of opinion with him that the covenants of the respective parties to this indenture were mutual and independent. But we do not concur in the construction which was given below to the covenant of the defendant. It seems to us that an engagement to teach the apprentice, or to cause the apprentice to be. taught, a trade, is not an engagement that the apprentice will learn that trade. If it were so, then had the apprentice died on the day succeeding the execution of the indenture, or had been visited by . an infirmity which ■ utterly disabled him to learn, or had obstinately resisted every proper effort to make him learn, the covenant would have been broken, and the defendant responsible in damages for the breach. Nor do we think that, in such a case, these circumstances should avail to lessen the damages; for if an individual deliberately bind himself to *insure*a certain result, and the obligation is broken, the extent of the injury forms the measure of damages, however the performance may have been defeated. It would be doing violence, we think, to the words found in this covenant, to regard them as stipulating for more than faithful, diligent and skilful instruction. The case of *Winston*v. *Linn,*4 Eng. C. L. Rep. 131, which has been cited for the plaintiff, does not conflict *406with this opinion. It was there held that the covenants were mutual and independent, and that disobedience on the part of the apprentice, and his temporary withdrawal from the service of the master, did not warrant the latter in insisting that the *indenture was dissolved.*It decides no more; and the learned Mr. Justice Bayley, who presided on that occasion, and whose views are given more *in extenso*than those of his brethren, expressly says, “ If he (the apprentice) “ had continued to absent himself to the end of the term, there can be no doubt but *that*would have been an answer to the action.”

This court is also of opinion, that the evidence offered of the acts and declarations of the apprentice was improperly rejected. They may not have been of great importance, and they are not evidence because of any credit due to the party by whom they were done or uttered ; -but his *acts*are evidence because they are *his*acts; and his declarations are evidence because his disposition and temper are subjects of investigation; and these cannot be ascertained but through the medium of such external signs.

The judgment below is to be reversed, and a new trial awarded.

Per Curiam. Judgment reversed.