35 N.J.L. 240 | N.J. | 1871
The opinion of the court was delivered by
Upon the argument before this court, the counsel for the defendants relied chiefly, in support of the demurrer, upon the proposition that the stipulation contained in the article of agreement, which gave to the plaintiffs the exclusive, right to carry locomotives and tenders on trucks over the Erie road was illegal. The principle that, as common carriers, the defendants were bound to exercise their office with perfect impartiality, in behalf of all persons who apply to them, and that practicing this public employment, they cannot discharge themselves, by contract, from the obligation, was appealed to in support of this position.
The agreement between these parties was, in short, this: The firm of Kassou & Company, who were the assignors of the plaintiffs, the Union Locomotive and Express Company, agreed to provide “cars and trucks sufficient in size, strength, weight and capacity whereon to carry all locomotive engines and tenders,” and that they would be at the expense of loading and unloading the same; and for the motive power, which was to be supplied by the Erie Railway Company, the defendants, and for the unusual wear and strain of their railway, a certain compensation, which was stated in said articles of agreement, was promised to be paid. On their side, the Erie Railway Company agreed, in addition to the stipulations
This rule of law Avas treated as settled, and was similarly applied in the modern cases of Mallan v. May, 11 M. & W. 653, and Price v. Green, 16 M. & W. 346. This same legal principle avíII be found to be discussed and illustrated Indifferent applications in the following decisions: Gaskill v. King, 11 East 165; 15 Ib. 440; Nichols v. Stretton, 10 Adol. & El., N. S. 346; Chester v. Freeland, Ley R. 79; Sheerman v. Thompson, 14 Adol. & El. 1027.
These and other authorities Avliich might be referred to, settle the rule, that the fact that one promise is illegal avíII not render another disconnected promise void. The doctrine Avill not embrace cases where the objectionable stipulation is-
On the ground, then, that both the consideration and the promise, which is the foundation of the action, appear to he valid, the plaintiffs must have judgment on this demurrer.
It. is proper to remark that as the demurrer is a general one to the whole declaration, I have considered only the cause of action set out in the first count.
Judgment for plaintiffs.
Cited in Union Locomotive and Express Co., v. Erie Railway Co., 8 Vr. 26; Stewart v. Lehigh Valley R. R. Co., 9 Vr. 521; Frank v. Freeholders of Hudson, 10 Vr. 352; Siedler v. Freeholders of Hudson, 10 Vr. 637.