23 Mich. 410 | Mich. | 1871
The action in the court below appears to have been brought upon a promissory note given by John O’Hara, with Daniel O’Hara as surety, to Horace Carpenter and William S. Maynard. The facts are agreed upon, and are substantially the following:
1. That the defendant, John O’Hara, was, at, and before, the making of the note, to wit: on and before the 14th day of February, 1865, a citizen of the United States, a resident of the township of Ann Arbor, Washtenaw county, Michigan, of the age of thirty years, and liable to be drafted into the military service of the United States and duly enrolled under the acts of Congress then in force.
2. That at the making of said note, said John O’Hara had not been, nor was ;he afterwards, actually drafted into the military 'Service of the United States.
3. That a draft had been ordered by the proper authority, under which the quota of men required to be furnished from the township of Ann Arbor aforesaid had been assigned, apportioned and established, and that at the time of the making of said note said quota had not been filled, and a draft was impending to fill such quota unless the same should be filled by volunteers.
4. That the defendants executed and delivered the note to the payees therein named, at the date of such note, and that the plaintiff was the holder thereof at and before the commencement of this suit.
5. That the consideration for said note was the following contract, executed and delivered by said Carpenter and Maynard to John O’Hara at the date of the note, to wit: “For and in consideration of five hundred dollars received of John O’Hara of the town of Ann Arbor, we hereby agree that in case said O’Hara shall be drafted so as to do duty
“William S. Maynard.' [Seal.]
“ Horace Carpenter. [Seal.]”
Upon this state of facts the makers of the note contended that the instrument was invalid, because the contract which was the consideration therefor was contrary to public policy and void in law, and for that reason was incapable of supplying the necessary consideration for the promise contained in the note. But the circuit judge held otherwise, and the plaintiff had judgment. We think the circuit judge erred in this ruling. We find on examination of the contract that its general purpose was to insure and protect a citizen liable to perform military duty, against being compelled to do so. Some question was made on the argument, regarding the precise meaning of the words in the contract, “ be drafted so as to do duty in the army,” etc., but we can put no other construction upon them than that the parties insuring only undertook to pay the large sum specified by way of indemnification in the event of the draft being made effectual by a compulsory service of the insured party as a conscript in the army. The mere drafting was not to entitle the party to indemnity, but he was to be drafted so as to do duty; or in other words, do duty in the army in consequence of the drafting. This was what was insured against, and for such a drafting the indemnity was provided. The contract is compared by the defendant in error to other contracts of insurance, and it is strongly insisted that it is
It is true that there was a mode in which the contemplated protection might have been legally given in this case; that is to say, by providing a substitute; and it is,urged with much force that when a contract is capable of legal performance, it is but just to assume that the parties had such legal performance in view when they entered into the contract, and that they did not contemplate a violation of law. We are not at liberty, however, to shut our eyes to the fact that the parties also contemplated that the insured might be protected against a draft “otherwise” than by furnishing a substitute; but had they not done so, and were we.able to see from the terms of their undertaking that the motives of the insurers were in every particular correct and unexceptionable, the fact would still remain, that whatever would have defeated the draft would have conduced to the benefit and protection of the insurers, so that the contract necessarily and effectually placed them in a position of antagonism to an important measure which the government in a time of war had resorted to in order to recruit its armies.
The thing insured against in this case, though an evil
Insurance contracts in other cases are generally so framed as to make each party interested in doing that which is for
The law of insurance, as laid down by the courts, will present analogous cases of contracts adjudged void because contravening public policy. A Avager policy, that is to