Beebe v. Johnson

19 Wend. 500 | N.Y. Sup. Ct. | 1838

By the Court,

Nelson, Ch. J.

It is supposed by the counsel for the defendant that a legal impossibility prevented the fulfilment of the covenant to perfect the patent right in England, so as to secure the monopoly of the Canadas to the plaintiff, and hence that the obligation was dispensed with, so that no action can be maintained. There are authorities which go that length, Co. Litt. 206, b.; Shep. Touch. 164; 2 Co. Litt. 26: Platt on Cov. 569; but if the covenant be within the range of possibility, however' absurd or improbable the idea of the execution of it may be, it will be upheld: as where one covenants it shall rain to-morrow, or that the Pope shall be at Westminster on a certain day. To bring the case within the rule of dispensation, it must appear that the thing to be done cannot by any means be accomplished; for, if it is only improbable, or out of the power of the obligor, it is not in law deemed impossible. 3 Comyn’s Dig. 93. 1 Roll. Abr. 419. Now it is clear that the fulfilment in this case cannot be considered an impossibility within the above exposition of the rule ; because, for any thing we know to the contrary, the exclusive right to make, use and vend the machine in the Canadas, might have been secured in England by act of parliament or otherwise; at least, there is nothing in all this necessarily impossible. These provinces are a part of the British Empire, and subject to the power of the parliament at home; which body might very well grant the privilege the defendant covenanted to procure. Certainly we are unable to say the government cannot or would not by any means grant it.' There is, then, nothing in the case to take it out of the rule in Paradine v. Jane, Aleyn, 27, as expounded by Chambre, J. in Beall v Thompson, 3 Bos. & Pull. 420, namely, if a party enter into an absolute contract without any qualification or exception, and receives from the party with whom he contracts the consideration of such engagement, he must abide by the contract, and either do the act or pay damages ; his liability arising from his own direct and positive undertaking. 6 T. R. 750. 8 id. 267, Lawrence, J. 10 East, 533. 4 Carr. & Payne, 295. 1 Selw. 344.

It has also been said, that the action cannot be maintained, as the covenant contemplated the violation of the laws of England. We are unable to perceive the force of this objection, as the fulfilment of the covenant necessarily required the procurement of lawful authority to make and vend the machine in the Canadas. It is difficult to under stand how this could be accomplished by other than lawful means. That it might be by such, we have already considered not impossible.

Again ; it was said the contract was void, because it contemplated a renunciation of citizenship by the defendant. Whether, if the fact was admitted, the consequence would follow we need not stop to consider, because it is very clear that no such step is necessarily embraced in the covenant. For aught we know, the patent might be procured without such renunciation; and if it were considered unlawful to contract for expatriation, in as much as this agreement does not necessarily contemplate it, we would be bound to hold that the defendant assumed to procure the patent without it. But even in England, the common law-rule against the expatriation of the subject is so far modified that naturalization abroad for commercial purposes is recognized, and is of course lawful. 1 Comyn, 677. 8 T. R. 31. 1 Bos. & Pul. 430, 440, 444. 2 Kent’s Comm. 49. 1 Peter’s C. C. R. 159. In the case of Wilson v. Marryat, 8 T. R. 31, and 1 Bos. & Pull. 430, it was decided that Collet, a natural born subject of Great Britain, having become a citizen of the United States, according to our laws, was entitled to all the advantages of an American citizen under the treaty of 1794. There the defendant undertook to avoid a policy of insurance procured by the plaintiff for the benefit of Collet upon an American ship and cargo, of which he was master, on the ground that he was a British subject, and therefore the trade in which he was engaged illegal; being in violation of the privileges of the East India Company, which trade was secured to American citizens by the treaty of 1794.

New trial denied.