Erie Railway Co. v. Union Locomotive & Express Co., 35 N.J.L. 240

Erie Railway Co. v. Union Locomotive & Express Co.

35 N.J.L. 240 | N.J. | 1871

The opinion of the court was delivered by

Beasley, Chief Justice.

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 *245for providing motive power and giving the use of the road, that tiie ears of the assignors of plaintiffs should be the only ears employed in the transportation of locomotive engines and fenders. It is this last provision which gives rise to the objection already stated. It is insisted this stipulation gives the plaintiffs the exclusive control, on their own terms, of this branch of business; that it precludes all competition, and being the grant of a monopoly, is inconsistent with the purpose and objects of the charter of the defendants, and with their character as common carriers. The question thus preseme;! is one of much importance, and it should not, consequently, be decided except when it shall be an element essential to the judgment of the court in the particular case. That it is not such an element, on the present occasion, is obvious, for, let it be granted that the provision in question is illegal, and therefore void, still such concession cannot, in the least degree, impair the plaintiffs’ right of action. The suit is not for a breach of this promise of the defendants, that no other cars but those of the plaintiffs shall be employed in this branch of the carrying business, hut it is for the refusal of the defendants to permit the plaintiffs to transport locomotives and tenders, according to their contract, over Hie railway of the Erie company. This latter stipulation, the violation of which forms the ground of action, is distinct and entirely separable from the former one, in which it is alleged the illegality before mentioned exists. Admitting, then, for the purpose of the argument, the illegality insisted on, the legal ju’oblem plainly is this: whether, when a defendant has agreed to do two things, which are entirely distinct, and one of them is prohibited by law, and the other is legal and unobjectionable, such illegality of the one stipulation can be set up as a bar to a suit for a breach of the latter and valid one. This point was but slightly noticed on the argument; nevertheless, an examination of the authorities will show that the rule of law upon the subject has, from the earliest times, been at rest. It was unanimously agreed, in a case reported in the Year Books, 14 Henry VIII. 25, 26, that if some of *246the covenants of an indenture, or of the conditions endorsed upon a bond, are against law, and some good and lawful,, that in such case, the covenants or conditions which are against law are void ab initio, and the others stand good. And from that day to this, I do not know that this doctrine, to the extent of its applicability to this case, has anywhere been disallowed. It was the ground of the judgment in Chesman v. Nainby, 2 Lord Raymond 1456, that being a suit on an apprentice’s bond. The stipulation alleged to have been broken was, that the apprentice would not carry on the business in which she was to be instructed, within “the space of half a mile ” of the then dwelling-house of the plaintiff. There was also a further stipulation that she should not carry on this business within half a mile of any house into which the plaintiff might remove. The suit was for a breach of the former stipulation, and it was -admitted that the latter one was void, as imposing an unreasonable restraint on trade, and it was urged that, by force of this illegal feature, the whole contract was void. But the court were unanimously of opinion that as the breach was assigned upon that part of the condition which Avas good in krw, therefore if the other part, to which exception Aas taken, was against Iuav, yet that Avould not hinder the recovery upon'part of the condition which was legal. This judgment Avas aftenvards affirmed by the twelve judges, on an appeal to parliament, 3 Bro. Parl. C. 349.

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-*247for tile performance of an immoral or criminal act, for such an ingredient will taint the entire contract, and render it unenforeibleiu all its parts, by reason of the maxim ex turpi eauna von oritur actio. Nor will it, in general, apply where any part of the consideration is illegal, so that in the present case, if, upon the trial, it should appear that the plaintiffs have agreed to pay to the defendants more than the charter of the latter allows, it may become a question whether this suit will lie. There arc many decisions to the effect that where there are a number of considerations, and anyone of them is illegal, the whole agreement- is avoided, this doctrine being put upon the ground of the impossibility of saying how much or how little weight the void portion may have had as an inducement to the contract. But, at the present stage of the cause, the entire consideration of the promise sued on must be regarded by the court as unobjectionable, as there is nothing on the record to show any overcharge.

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.