14 Minn. 400 | Minn. | 1869
Lead Opinion
By the Court
Sec. 1, Ch. 60, p. 99, Laws 1868, makes it the duty of any person having and operating a threshing machine, the horse power and separator of which are‘connected by a tumbling rod, to box or cover and inclose the knuckles and rods between the outside horse and the machine, with a board box, so that no part thereof shall be exposed, whereby persons shall be liable to be injured when the machine is in operation.
Section 2 provides that any person who shall refuse or neglect to comply with the foregoing requirement, shall be deemed guilty of a misdemeanor, and shall be fineable in a sum not exceeding fifty dollars. The complaint states that the plaintiff, in the fall of 1868, at the request of and for the use of the defendant, threshed 1658 bushels of grain ; that said threshing was reasonably worth $69.84, and that the defendant promised to pay the plaintiff that sum. The threshing was then the consideration of the promise. One defense set up in the answer is that the threshing was done with a threshing machine the knuckles and rods appertaining to which were not covered as the law. requires. This is a good defense. As remarked in Solomon vs. Dreschler, 4 Minn., 279, “ where a statute inflicts a penalty for doing an act, although the act is not prohibited in terms, yet it is thereby rendered unlawful, because 'the infliction of a pen
It was said by Lord Tenterdon in Wetherill vs. Jones, 3 B. & Ad., 221, that “ where a contract which a plaintiff seeks to enforce is expressly or by implication forbidden by the statute or common law, no court will lend its assistance to give it effect, and there are numerous cases in the books where an action on the contract has failed, because either
Dissenting Opinion
I am obliged to dissent from the decision in this case.