2 Stew. 175 | Ala. | 1829
The action was brought upon an instrument, of which the following is a copy, viz:
“On or before the 28th day of April 1822, we or either of us promise to pay A. B. Camngton or bearer, one hundred and fifty dollars (with interest from the date if not punctually paid) for value received. Witness our hands and seals, this 29th day of April 1819.
(Signed,) ■ JAMES CALLER, [Seal.] ROBERT CALLER. [Seal.]”
There is also mucn evidence tending to prove viola* tions of these terms by the committee. That to secure a large harvest to themselves, they inserted many names of persons who were not members, as such, several of which were fictitious; and other acts were done by them in contravention of the agreement, which it is unnecessary to •s!ate, as they-form none of the data on which the court has arrived at a decision.
It is proved that the members of the company, especially those who constituted the committee, were activé in ascertaining the names, and particularly the pecuniary” means of all strangers who arrived in town with the intention of purchasing land, and in urging every monied man, both stranger and acquaintance, to unite with them, pro* raising an ample return of profit in the event of his doing so, and threatening to use the power which their united capital 'gave them, to make him give exborbitant prices for the lands he might purchase, or to prevent him from purchasing any, if he would not make common cause with them. It is also proved that persons who w ere unable to' raise the sum of money necessary to constitute them members of the company were operated upon in another way to induce them to aid in effecting the objects of the company, viz: preventing competition at the government sales and adding to the amount of the joint capital. Such per
After the purchases were thus made, the company in conformity with their agreement,proceeded to sell at public sale the land thus purchased, on the following terms, viz: one fourth cash, the balance to be secured by notes with security, payable in four annual instalments. At this sale it appears to have been the object of many members of the company to run the land up to high prices, and as much as they could, to avoid purchasing themselves. When the sale was "closed, the money and notes of the purchasers were received according to the terms, the payees’ name's being left blank in the latter, with the understanding that the blanks should be filled up to the person to whom they should be allotted in the distribution which was agreed to be made of them among the members of the company. The instrument sued-on was one thus given and distributed, the defendant having been a purchaser at the company sale, and in the distribution, this instrument was allotted to the plaintiff, he being one of the company, and was
It was on a demurrer to the defendant’s evidence, that a judgment jiro forma, was rendered for the defendant. It may be well, first, to understand what is the effect of a demurrer to evidence.
This mode of wresting the decision of facts from a jury,, and devolving it upon the Court, has never been favored;, but a party certainly has the power to do it. -When, however, it is done, the evidence is to be taken most strongly against the party demurring, and the Court is to receive as true, not only every fact which is- plainly proved, but also every inference which can legitimately be drawn from the facts, against the party demurring: And the reason of the rule is this, that a party shall never be injured by an act of his adversary done without his-consent; and as it is the act of his adversary to withdraw the issue from the-jury, therefore, every inference the jury could have properly drawn in his favor, shall be drawn by the Court. Yet, while these positions are such as the law assumes, it is evident that the evidence is to be governed by the same rules as in other cases, and that the inferences and deductions of witnesses, with which this record is pregnant, can have no effect upon the decision of the Court.
The defendant resists a recovery on several grounds. I shall only examine one- of them, which is this: “that no judgment can be rendered for the plaintiff, because the consideration for which the instrument on which the action is founded, was against public policy, therefore illegal and void.”
It is a plain and undeniable principle-of law, that if the consideration, or any part of the agreement, upon which the bond which is the foundation of this action, was executed, was illegal or against public policy, the bond isvoid, and there can be no recovery thereon. This position has been taken by the defendant’s counsel, was not denied in the argument, nor can it be controverted.
The inquiry then is, was the consideration for which this bond was executed, against public policy and illegal?
But before this part of the subject is directly investigated, it is necessary to determine upon the character of the agreement entered into by the company, as respects the
A combination between two or more persons by which it is agreed, that one or more shall not bid at an auction, sale, and the other shall make the purchases for the benefit of all the parties, has uniformly been decided to be a contract against public policy, and that no recovery can be had against the bidder if he refuse to carry the agreement into execution, but he may retain all the profits of the speculation in his own hands. See 6th Johnson’s Reports 194, 8th Johnson’s Reports 346, and 13th Johnson’s Reports 112. The case last cited is very strong. Judge Spencer, who delivered the opinion of the Court, first determines that the contract was not nudum pactum, but, except for its illegality, sufficient to sustain the action; but 'he proceeds to say: “Whatever may have been the motives of the parties in making the agreement, and however upright their intentions, the question recurs, is not the promise made by the defendant, void, as contravening established principles of public policy? If the considertion be ever so meritorious, yet if the act agreed to be done, and which forms the basis of the agreement, be unlawful, the promise cannot be enforced in a Court of law.” He proceeds: “The judges who delivered opinions in the case of Jones v. Cawell, held, that the law had regulated sales on executions with a jealous care, and had provided a course of proceeding likely to promote a fair competition, and that a combination to prevent competition, was con-r trary to public policy and to the interests of the original debtor, whose property was liable tó be sacrificed by such combinations. The principle was recognized in Doolin v. Ward,
It is unnecessary to enter into a labored train of reasoning to support this decision; its propriety is too apparent. But were it of a more doubtful character, the decisions are too uniform, and the principle too well settled, now to be disturbed.
It is now necessary to inquire, does this rule apply to a sale of lands at auction by the United States? It is urged that the government is interested in fostering the, interests of its citizens and securing their prosperity; that it is not consistent with these objects nor good policy, that it should sell its domain at high prices to the citizen; and that establishing a minimum price, proves that nothing more is expected or demanded by the government;therefore any combination intended to secure the lands to the purchasers at the minimum price, is perfectly consistent with the policy of the government, and of consequence lawful.
It might if necessary be replied in this instance, that the facts of the case do not show a disposition, on the part of the ruling spirits of this company, to secure to the citizens at large, the purchase of the government lands at the minimum price, and thus to promote the prosperity of the country, by securing the comfort and pecuniary independence of the citizen: on the contrary, the manifest object of the company was to swell their own- cofiers by unjust exactions from others. Else why by threats and promises deter the humble settler from securing the place on which his cabin and his family were situated, at the government sale? Why require that he should not bid, but that the land should be all purchased, which was of any valúe, by tisis monopolizing company? Why exact from him a large advance, generally one hundred per cent at least, for the privilege of paying the amount demanded by the government, for the land which he wanted to live upon and to cultivate? Whatever may have been the intentions of the government, these facts afford hut little proof that this company wished to advance' the prosperity of the citizens generally, by enabling them to obtain lands at the minimum price.
Nothing is more common than for a person- who offers his property for sale at auction, to make it known to bidders that a price is fixed on, below which it will not be permitted to be sold. Yet who has ever understood that this was proof that the owner wished no higher price to be bid? Surely it gives conclusive evidence to the contrary; nor has it ever been supposed that a combination to prevent competition, where there was such limitation of price would be less, illegal, than in other cases.
If it had been the policy of the United States to dispose of their lands at two dollars per acre, and no more, it would have been easy for Congress to have made this intention obvious, nay it would have been easy to have effected the object. It would only have been necessary to have permitted entries 'to have been made at this price, and complete effect would, at once, have been given to such intention. On the contrary, efforts which have been made to obtain the passage of such a law, and there have been many, have proved unavailing. It is evident to me that the object of the government, as declared by its laws, has been to sell the public lands for the highest price they would bring, and the minimum price has been established with a view directly in opposition to tho one contended for by the counsel for the defendant in error.
The inquiry results then,.was this company formed for the purpose of putting down competition at the sale of the public lands at St Stephens?
To show that it was, more perfectly than the evidence proves it, would be impossible. It was the avowed object for which the members composing it associated themselves together; it is expressed in the agreement which bound them together, and it is not only apparent that this was their intention, but equally clear that they were altogether successful. The lands were equally valuable at the time they were sold by the government, as when sold by the company. Only two or three days intervened between these sales; no additional value was given to the lands by
But although this was the case, yet unless such illegal agreement embraced the sale by the company, unless it formed a part of the contract by which the defendant became a purchaser at the company sale, and in consideration of which purchase he executed the bond sued on, it is no defence to him, and judgment must be rendered for the plaintiff in error. I will now endeavor to investigate this "part of the case.
The law which governs this point is so lucidly laid down, and the decisions relating to it are so generally referred to in the case of Armstrong v. Toler,
The case was as follows: an action of assumpsit was brought by Toler to recover from Armstrong a sum of money paid by Toler on account of goods, the property of Armstrong and others, consigned to Toler, which had been seized and libelled in the District Court of Maine, in the year 1814, as having been imported contrary to law. The goods were shipped during the late war with Great Britain, at St Johns, in the province of New-Brunswick, for Armstrong, and other citizens and residents of the United States, and consigned to Toler, also a domiciled citizen of the United States. The goods were delivered to the agent of the claimants, on stipulation to abide the event of the suit, Toler becoming liable for the appraised value; and Armstrong’s part of them was afterwards de
The position taken by the Circuit Court, in this supposed case, is expressly sustained in the opinion of the Supreme Court. Let us test the case before us by it. The obvious meaning of the judge is, that should an illegal agreement contain a stipulation, that something, upon the happening of a contingency, should be done by one of the parties, which if done wilhout such stipulation in the illegal agreement, would form a second and independent contract, its being so síipuiatéd in the illegal agree
In the case put, goods are shipped contrary to law, it is agreed that the consignee shall, when necessary, and iflibelled, defend them, and that the consignor will him for the expenses which may be incurred in doing so. The goods are libelled, the consignee does defend them and pay the expenses consequent on the suit, the consignor executes to him his bond or note for the amount of the expenses thus incurred and paid; this instrument is tainted with the illegality of the importation, and is void. Why is it so tainted? Because.it was contemplated by the parties, and provided for in the first agreement. If the goods had been shipped with the simple understanding that the consignee should receive and sell them, and he had paid expenses consequent upon their being libelled, without any previous engagement to do so, and the owner or importer had subsequently promised to pay those expenses, there is no doubt but the execution of this promise might have been coerced at law, although the consignee knew of the illegality of the importation. This, in fact, would have been substantially the case then on trial. And the reason is, that it is lawful for a man to defend a suit of this description, therefore it must be lawful for him to borrow the money to enable him to do so, even of one having a knowledge of the illegality of the original transaction. Thus it appears that an agreement which is entirely innocent in itself, may be rendered illegal and void simply from its being included with one which is against public ■ policy, which is so contaminating, that it taints every thing with which it comes in contact.
To apply this to the case before us. The members of the Court all concur in the opinion that the combination to prevent competition in the sale by the United States was illegal, and therefore not binding on those who entered into it. Indeed, this point was so manifestly against the plaintiff, that his learned counsel seemed, in the argument, almost to yield it. But the same agreement by which this combination was formed, contained a stipulation that the land purchased by the company should be immediately resold at auction; it was so resold, and the defendant, as one of the purchasers, made the promise of payment which is the foundation of this action; and it is insisted that this is an independent contract. How independent? Was not the land sold by the express terms contain
Chief Justice Marshall, in his very able opinion before refered to, cites several cases from English books, in all which the turning point was, “is the contract entirely a new one, distinct from, and unconnected with the illegal transaction, or had it any relation to it?”
If in the case of illegal contracts, money was advanced by one of the parties, even in an incidental way, for another, he could not sustain an action to recover it back. As in the leading case of Faikey v. Reynous;
In the case of Petrie and another, Executors of Keeble v. Hannay,
In none of the cases which I have cited, does it appear that the plaintiff’s recovery was made to depend on his having to give evidence of the illegal consideration, or not, before he could lay a ground for a verdict. Indeed, although this rule is laid down in some cases in the books, it cannot be. general in its application, as the mere introduction of a bond or promissory note would preclude all further inquiry, and render certain a recovery, no matter how nefarious the consideration. According to this rule, in the case put by the judge of the Circuit Court in Armstrong v. Toler, and which I have already considered at some length, if a verbal promise were made to repay the expenses of the suit which had been paid by the consignee, who had agreed when the goods were shipped to him, to make such payment if necessary, the plaintiff on the trial, would prove the suit, the payment of the expenses, and the promise, this would authorize a verdict in his favor; but the judge of the Circuit Court says, (and the Supreme Court sustains him,) the defendant might then prove the original illegal agreement, and that the promise and payment were made in conformity with a stipulation contained therein, and thereby exonerate himself from the demand. It is against every principle of law to determine that a plaintiff, by management, may, without the act of the defendant, place himself in a better situation, and the defendant in a worse, than they otherwise would be.
It has been contended for the plaintiffs that if the United States do not agitate this question, and sue for a rescission of the sale made to this company, no other person can move a step that way. It is certain that no party to this illegal agreement could successfully apply to the tribunals of the country, as plaintiff, to be relieved from the situation in which he has placed himself; but it is equally certain that any person sued on any part of it may plead its illegality in his defence against any other person whatever. All the cases refered to are those in which similar defences have been urged, and the only inquiry has been, “was the plea sustained?” not, “was it legal to make it.” Who is it that has uniformly sued'on agreements to prevent competition at auction sales, in the cases in which those agreements have heen determined to be illegal? Not the owner of the goods sold, but a party to the agreement who conceived himself injured by not receiving from his fellow, his share of the profits made by the speculation. Such contracts are void .as to all the parties concerned, and destroy every agreement which is affected by their polluting touch.
The maxim in pari delicto melior est conditio possidentis, might afford a sufficient answer to this objection; but waving this, it may be replied, that if this rule applies, it certainly relates to the time at which the whole transaction commenced. At that time what was the situation of the company? They were in the possession of the money placed in the hands of the committee, their agents, by the individuals who composed it, amounting to a thousand dollars each. When the land was purchased by them, they paid down one fourth of-the purchase money, and received the registers certificates. When they sold to the defendant (at a greatly advanced price,) he paid them one fourth the amount or price for which he purchased of them, received a transfer of the register’s certificate, and was alone responsible to the United States tor the remainder due to them. The' company then, collectively, and members individually, particularly those who bought no land at their sale, have profited greatly by their illegal association ; and have received for the land purchased of them by the defendant, in part payment for which the instrument sued on, was given, much more than they have paid. As is shown by the testimony, they received in cash an advance of an hundred and twenty-five per cent, on their capital, with a return of the principal, within two or three days of the time of its investment. Surely then they cannot complain, nor this plaintiff, who was one of them, that the defendant does not place them in statu quo.
For these reasons, I am of opinion that the judgment should be affirmed; and-of this opinion are a majority of the Court.
I have not enjoyed the instructive pleasure of hearing the arguments made in the cases at previous terms, and consequently, am denied the benefit of the lights they doubtless shed on the points of inquiry; I must therefore content myself with expressing an opinion, assisted by such aids as the arguments at the present temp, and reflection upon them afford.
The government of the United States have, by Congress, its legitimate organ; provided the manner in which its domain shall be disposed of. They have fixed a value at less than which it shall not be sold; and have directed that it shall be offered at public auction, where it may sell at this minimum, and such an advance as those wishing to purchase may be inclined to pay. I understand by the adoption of the auction system, that the government designed its lands should sell if not for an ideal, at least for an intrinsic value. And that this was not ascertained by the minimum, but that the minimum was settled with a regard rather to the expenditures necessary to acquire the lands, and survey them for rriarket, than any other consideration. And hence the object of government was not effected by a sale of its territory at a sum less than that which, in a fair market, it would yield. Consequently every association, the tendency of whose purposes is to cause the public domain to sell at a diminished value, thwarts, in this particular, the national policy.
Having noticed the policy of the government on this subject, so far as necessary, I proceed to consider such legal rules as the facts suggest. Every contract against public policy, or adverse to the enactments of the legislature, is illegal and void.
The case of Armstrong v. Toler,
Having shewn by the authorities recited, the existence of the rule and its qualifications, so far as important, I next purpose to shew its application; and first to the case of Carrington v. Caller. I consider it a proposition too obvious to require proof, that an association, such as the facts shew to have existed, must have had the effect to prevent the government lands from selling at their fair market value. Whatever may have been the effect, such at least was tire tendency of the measure, and no case can
The purchase at the company sales did not constitute a substantive contract, distinct from the purchase at the government sales; they were both provided for in the articles of association, and had a reference to each other; the one depending upon the other, and so understood and stipulated before the government sales were made. With what propriety then could the plaintiff argue that the purchase by Caller was disconnected with the purchase by the company? Did not the one grow immediately out of the other, and was not the sale at which Caller purchased, the direct and immediate consequence of the purchase by the company? I have endeavored with laborious attention, to discover the two contracts which we have been told exist; and confess that I have been unable to do so. I view the two sales as constituting distinct transactions provided for by one entire contract. As a play embraces many acts and scenes, which disconnected, are imperfect, and discover not its moral, so the stipulations of the association, in order to a full developement of the contract, must be considered as they were made, altogether.
For the purposes of argument, I might admit that in fact two contracts have been proven, and if in truth it were so, the plaintiff would not be benefitted, if the first contract was illegal; because the second, to use the language of the Court in Armstrong and Toler, “would clearly be a promise growing immediately out of, and connected with the illegal transaction.” If the members of the company had have divided the lands purchased, before the sales by the company, any disposition by each or either, of his share, would have constituted a new contract, and been recoverable on without regard to the original taint. The case supposed in Armstrong and Toler, of advances made by a friend to whom goods had been .illegally consigned, with his consent, and of a promise by the owner to indemnify him for his advances, is a
It has been argued that the defendant cannot object to the payment of hishond, because of the political taint of the contract, unless he has placed the plaintiff in the situation he was in before the bond was executed, or has offered to do it. This argument appears to be an interpolation of the rule by which this description of defence is tolerated. It is proper to examine it. I understand that in relieving against a contract denounced-by the policy of a law, the relief is not afforded with a view to favor the defendant, but to discourage contracts which restrain or control the operation of the law; therefore, those principles of justice by the application of which individual rights are settled, are not permitted in such cases to have a controling influence. In Holman v. Johnson,
For the plaintiff it has been argued, that admitting the contract once to have been impure, it has been purged by its recognition by the officers of government. There is nothing in the record which shews this to be the fact; but we will suppose it to be so, with a view to test the force of the argument. - The recognition by the government, of the purchases at these sales, can. have no influence in determining whether the purposes of the association were impolitic. The policy of the government was declared by an act of the legislative department, and is not subject to the control of either of the other departments; the subject being one exclusively within the control and superintendance of Congress. Let it be supposed that Congress had the sagacity to discover that its policy was unwise, and the patriotism to denounce it; would such an act operate an ablution of all the contracts of the company which were affected by the political stain? I apprehend not. If the contract was illegal when entered into, it is beyond governmental and legislative competency, so far as third persons are concerned, to give to it validity. That such was the case with the contract we are considering is already shewn.
It is further argued, that before we determine that the contract is illegal, we must believe that the acts of Con-' gress under which the lands were sold, were dictated by
Having discussed all the points deemed material to be noticed, and having shewn that the bond of Caller is affected with political taint, it remains only to shew that Meggison’s bond is subject to the same objection. Meggison was not a member of the company, but agreed with May not to bid at. the government sale, on condition that the company would purchase and sell to him, two quarter sections of land, at two dollars per acre advance. The company recognized the contract as to one quarter, and refused as to the other; it was sold at the company sale, and Meggison became the purchaser. The contract with May, and which the company adopted in part, was against the policy of the law; its effect being to do away competition, by a renunciation by Meggison, of his right to bid. If the consideration of Meggison’s bond was the eleven dollar purchase alone, I should be inclined to sustain it, on the ground that it would be founded on a consideration disconnected with the company purchase, and therefore free from political taint. But the two purchases by Meggison, constitute parts of one entire contract, for which bonds were given for the purchase money, without distinguishing the amoiipt of each. I have no hesitancy in determin-
I am accordingly of opinion, that the judgments should be affirmed.
I am glad that these cases which have been pending for years, and which have caused much excitement and expectation in our southern community, and on Ihe principles involved in which, it is said that immense sums are yet depending, are now, after three solemn arguments, to • be decided and set at rest forever.
In the progress of the argument, at every stage of the proceeding, my first opinion has been strengthened and confirmed in the conviction of my own mind; and though it is my misfortune on the most material points to differ from a inajority of the Court, yet I have the consoling re* flection that my opinion is the result of much deliberation, and as I believe, is well sustained by the rules of law and the principles of justice.
It appears that in the Court below, the judgments on the demurrer to the evidence were in favor of the defendants, and who are also defendants in this Court.
The facts of the cases are spread upon the record, and as far as they have boon refered to in the opinion pronounced by a majority of the Court, they have been correctly recited; it is therefore unnecessary for me again to repeat them. I shall only take notice of those positions and legal deductions in which I am constrained to dissent from the judgment of the Court; for to some of them I yield my most hearty concurrence.
It is said that the original object of the land company being to destroy competition at the land sale, and to buy the public lands at an under value, or at the minimum price fixed by law, was against public policy and therefore void. If this rule be generally correct, yet it is at least questionable whether the peculiar circumstances of the cases at bar do not form an exception to the rule. Could it be against public policy for the people to procure lands and a home in the wilderness of Alabama on the best and cheapest possible terms? Will it be contended that an
The United States voluntarily sold the land to the company. If the combination on the part of the company was unlawful, and vitiated their purchase, the United States might have complained and set it aside; but with a knowledge of all the circumstances, through their agent, the Register, they acquiesced in the proceedings of the company, and confirmed the sale by receiving part payment and granting certificates to them; with their eyes open they confirmed a contract which otherwise might have been avoided; and thus made it good and lawful, and vested in the company an exclusive right to the land. And all the authorities support the position, that if one party know of the imposition practised, or attempted to be practised by the other party, and if instead of rescinding, he proceed to a completion of the contrae!, this amounts to a waiver or extinguishment of the imposition, and renders the contract lawful and binding. It must then' be conceded on all hands, that the company, by their purchase .from the United States, became the legal owners of the
case 0f Meggison, he was not a member of the 'company, and cannot possibly have, any thing to do with the mode or manner in which the company acquired their right to the land. He claims directly from the company, who being the rightful owners when they sold to him, he cannot refer back' to the conduct of the company previous to their purchase from the United States, in order to avoid payment of his purchase from the com-'pany. To me the doctrine does seem preposterous, and not sustained by law, that after Meggison had purchased land from the company, and with a full knowledge of the imposition, if any had been practised, gave his note for payment, received title, and has since sold the land, he should now be permitted to avoid payment, by a reference •back to any circumstance attending the original acquisition from the United States. He has got the land which was unquestionably the property of the company; and does not justice require, and will not the law compel him to pay the price of his purchase to the company who were the rightful owners. But it is here objected that May, a member and agent of the company, agreed with Meg■gison that he should have the land at an advance of two •dollars. It will be recollected that afterwards, by a vote of the company, he actually' got one quarter section on those terms: but the company disavowing the authority •of May to make the agreement, the other quarter was sold to Meggison at auction for eleven dollars per acre, •but instead of then annulling his contract, with a knowledge of all the circumstances, he proceeded to its confirmation by receiving titles from the company, and giving •his note for the purchase, and which is the ground of the present action.
I will admit, pro hac vice, that May was authorized by the company to make the agreement with Meggison; yet it seems that he placed no reliance on that agreement; for his subsequent conduct in purchasing the land at eleven ■dollars, giving his note and receiving titles with a knowledge of all the circumstances, is conclusive evidence that he had abandoned May’s agreement, and treated it as a nullity, if any such ever existed. And in any point of view, I hold it as absolutely necessary, that Meggison ■should have offered a restoration of the land to the company, and to have placed them in statu quo, before he
As to the case of Caller, the same reasons which create a liability on Meggison, make him equally liable, though he was a member of the company. If the company, by virtue of their purchase from the United States, became the true owners of the land, Caller cannot refer back to the mode of acquisition from the United States, in order to avoid payment for his purchase. The taint of the original transaction was cured or removed by the United States consenting to the sale under the circumstances, before the company resold to Caller: nor can it be readily perceived by what rule of law or logic, the original taint under these circumstances, can be extended to vitiate his contract, and to defeat a recovery of the purchase money. The rule in pari delicto melior est conditio defindentis cannot aid him. Though he was a member of the company, and a party to the orignal combination, yet all the unlawfulness of that combination having been done away by the act of the United States in confirming the sale and granting certificates to the company, at the time of his purchase there was no remaining guilt in the first transaction or purchase from the United States which could extend to or vitiate the company’s sale to him. If he, with a knowledge of all the material circumstances, still proceeded to bid for the land, to buy it, to receive titles and give his note, surely he ought now to be held to his bargain. If Caller was b’afterwards cheated by the master spirits of the association in a division of the profits by the A. B. C. scheme, or other artifice, this happened after the sale by the company to Caller, and cannot affect the validity of the note he had given for the land. After he discovered the fraud, if any, he acquiesced, and cannot now complain, and ought to be compelled to pay the price he agreed to give for his land.
If the defence insisted on were legal and available, it surely comes with a bad grace from Caller, who is said to be equally guilty with the other members'of the company in thealleged nefarious transaction.
In support of my opinion vide 4 Cowen, 11th Wheaton, and the references contained.in the brief of counsel. I however respectfully submit to the judgment of a majority of the Court, and rejoice that this long agitated question is at last decided and put at rest, I hope-forever.
As these cases, in my opinion, depend essentially on the same principles, I shall consider them together. The pleas which went to the delivery of the notes, and the filling of the blanks with the names of the payees, having in effect been disposed of by a case heretofore decided,
The first question which arises is, whether this association was contrary to public policy? In examining this point, Ido not deem it necessary to inquire into the expediency or inexpediency of selling the lands of the United States, upon credit. If the association tended to thwart the object of the laws upon that subject, it may be admitted to have been contrary to public policy, however deleterious the laws themselves may have proven to the community. What then was the object of these laws? Evidently as I conceive, not only to secure to the government the minimum price, but also whatever the lands would command at public sale on the terms of credit proposed, and under the full operation of fair competition. But this combination had a direct tendency to put down such competition, and thus far was contrary to the policy of the statutes, and a fraud upon the rights of the United States. They then could have disaffirmed the sale, and declared it void, and they had a full opportunity of doing this. For the evidence shows that all these transactions were
Judgment affirmed.
Note. — For tlie plaintiffs, the following authorities were cited. To shew that none but the government could complain, 4 Cowcn 744, 5 John. 47, 2 Henn. and Munf. 245,3 Bibb 515. That the second sale could not he affected by fraud, Gow 305, 5 Taunton 181, 4 John. 204, 7 Taunton 246, 11 Wheaton 258. That the contract cannotbe rescinded because the plain-, tiff cannot be placed in stutu quo, 1 Term Rep. 154, 225, 5 East 449, Hardin 602,4 Mass. 502.3 Starlde Ev. 1646,1614, 6 Munford 366,1 N. R. 263. That proceeding to complete a contract after fraud is discovered, is a waiver of it, 8 Term Itep. 390,4 Esp. 264,10 Wheaton 392,3 Campbell G9*
The following authorities were relied on for the defendants: as to the insufficiency of the delivery of the notes: 1 John. Cases 114, 12 John. Rep. 418, lOMass. Rep. 456, Minor’s Alabama Rep. 103. As to the alteration of the note by filling the names of the payees, 2 Starkie’s Ev. 479, 480, 19 John. Rep. 391, Bullers N. P. 267, 4 Cranch. 60, 3 Am. Dig. 183. That the contract was against public policy, 13 Johns. Rep”. 112, 6 Id. 194, Cowp. 39, 1 Comyn on Contracts 28, 36, 37, Douglass 450, ,3 Term Rep. 22, 551, Selwyn N. P. 130,2 Caines Rep. Í47,444. That the notes were void for fraud, 2 Caines 147, 8 John. Rep. 253, Powell on Contracts 176,185. That money extorted by duress of goods, may he recovered backiu assumpsit, 2 Strange 915.
Note. — This opinion appears to relaté solely to the case of Carrington y. Caller, although fcoth cases were disposed of by the principles settled by it. By refermg to the opinions delivered by Judges White and Collier, the facts constituting the distinction between the two cases will be seen.
powe!1 on contracts ire. Wheat. 25k'
6 John. 154.
See Cowper 395, 6 Term. Rep. 642.
11 Wheat, 258.
page 271.
page 261.
4 Burrow 2069.
Page 418.
3 Tern Rep. 418.
Wheeler v. Russel, 17 Mass. 256.
2 Wheaton. 258.
6 Term Rep. 61.
8 Jota. 346.
8 Term Rep. 575.
5 Term Rep. 599.
4 Dallas 298.
3 M. and S. 117.
Pothier des Obligations No. 43. & 55.
Cowp. 341.
4 Dallas 269.
Crawford’s Ex’r. v. Morrell, 8 John. 195. 1 Chit. Pl. 296. 1 T. Rep. 201.
Note. — By Judge Collier. Since the determination of these cases, the Supreme Court of the United States, in two cases, Reported in 4. Peters Rep. have fully sustained the view taken iu this opinion of the case of Armstrong v. Toler,
Boardman v. Gore & Williams, 1 Stewart 517.
7 Taunton Siff.
Page 109.