27 N.Y.S. 289 | Superior Court of Buffalo | 1894
This action is brought- to recover damages for a. breach of contract of hiring. The plaintiff was the only witness sworn, and his testimony tended to establish that lie-entered into a verbal contract with the defendant whereby he agreed to render service for the defendant for the period of one year; that he entered upon said employment January 18, 1892, and continued to work thereunder until the 15th of March, 1893, when, without fault on his part, he was discharged by defendant. The only question presented upon this, appeal relates to the validity of the contract of employment, the court below having held it void. The defendant carries, on an extensive business in packing and shipping meats, and
It is argued that these provisions relate only to the common carrier and not to the shipper; that at common law it was not against public policy to contract for shipment with rebate on freights, so it is now no offense for the shipper or his agent to induce the carrier to violate the law, in consequence of which the present contract is lawful in character and provides for meritorious service. The case relied upon to support this construction (Root v. L. I. R. R. Co., 114 N. Y. 300, 305) discredits it, for in that case the rebates provided for had con
Consequently, by its express terms the act is made to apply to the plaintiff as though he were named in the prohibitive sections. Treating the act as malum prohibitum solely, defendant is not aided, for as to the forbidden acts the parties, are in pond delicto and each are subject to the penalties of the statute. Under such circumstances there can exist no enforcible contract. Tracy v. Talmage, 14 N. Y. 183-190; Knowlton v. C. & E. Spring Co., 57 id. 518.
This contract is an entire one; no part is severable from the other; its main object was to secure an unlawful preference in procuring freight reductions from established charges ; this element was the one of value contemplated by the parties to it, and as the service contemplated was illegal, and known by both parties to he so, the contract is equally so, and the law will not enforce it, or permit a recovery of damages based upon its violation. Jackson v. Walker, 5 Hill, 27 Foley v. Speir, 100 N. Y. 552-558; Pars. Cont. [8th ed.] 456.
It is further said that there is nothing in the contract showing that it was the intention of the parties to secure rebates from regular schedule tariff rates of railroads carrying freight outside the state of Flew York. The rule is recognized that
What was done by the parties under the contract may be resorted to for the purpose of aiding the interpretation. And the evidence in this case shows clearly that the railroads from which rebates were to be obtained were understood to embrace roads outside the state, and as we have already seen the contemplated reductions were to be less than the regular tariff schedule; it is, therefore, brought within the prohibitive terms of the Interstate Commerce Act.
It is also contended that the answer does not allege that the contract is illegal, and, therefore, the question is not raised. But this rule does not apply when, from plaintiff’s own testimony, the contract appears to be illegal. Honegger v. Wettstein, 94 N. Y. 252.
It is quite apparent that the parties, plaintiff at least, knew the service to be rendered was in violation of the Interstate Commerce Act; that trouble would ensue if the details were
The judgment and order appealed from is, therefore, affirmed, with costs.
Titus, Oh. J., concurs.
Judgment and order affirmed, with costs.