Ware v. Jones

61 Ala. 288 | Ala. | 1878

BRICK ELL, C. J.

The instructions given the jury, and the first instruction requested by the appellant and refused, involve the same question — the validity of a contract made during the war, for the sale of property real and personal, the seller knew the purchaser was buying, to be used in the making of iron fór the Confederate States, to aid and assist them .in the prosecution of hostilities against the United States. The question has been several times, in various forms, presented to this court, and with one exception, such contracts have been declared void.

In Shepherd v. Reese, 42 Ala. 329, a horse was purchased, the note given for the price, expressing that the horse was “ to go in Captain Smith’s mounted company, the horse to be paid for as he draws his money.” The proof showed the horse was purchased for use in the service of the Confederate States. The question was, whether a recovery could be had on the note. The court pronounced it void, as opposed to the national policy and the constitution. At the succeeding term, in Patton v. Gilmer, 42 Ala. 548, the facts were that the State of Alabama had advanced a large sum of money to an association or corporation, organized for the manufacture of arms, upon a contract to deliver to the State, arms of a certain number and description, and the corporation had given bond for the performance of the contract. The action was upon the bond, assigning several breaches of the contract, and it was held the action could not be maintained. The principle of the decision, is, that all contracts which are hostile to, or violative of the constitution or laws of the United States, are invalid, whether made by individuals, or the State. And that though the contract was made during the war, when the authority and laws of the United States were by force superseded, and the authority and laws of the Confederate States were dominant, it can not now be enforced in the courts of the State, bound to the constitution of the United States, as the supreme law of the land. In Oxford Iron Company v. Quinchett, 44 Ala. 487, a contract for the loan or hire of mules to a party, known at the time to be engaged in the manufacture of iron for the Confederate government, with a knowledge on the part of the bailor, that they were to be employed in the work, was declared invalid. In Oxford Iron Company v. Spradley, 46 Ala. 98, a promissory note given by a corporation for the loan of money, to be used in erecting iron works and making iron for the Confederate government, if at the time of the loan, the lender knew the purposes for which it was borrowed, was pronounced void. In Milner v. Patton, 49 Ala. 423, the action was on an account for goods sold and delivered, the seller knowing the purchaser intended to use them in clothing Confederate soldiers, and it was held the action was not maintainable. Opposed to these cases, stands the case of Thedford v. McClintock, 47 Ala. 423, which was expressly overruled in the case of Milner v. Patton, supra. — See, also, Bibb v. Commissioner’s Court, 44 Ala. 119; Speed v. Cooke, 57 Ala. 209.

These decisions must be taken as settling definitely, and finally, the law of this State, upon the question now involved; as they are supported by the decisions of the Supreme Court of the United States, though they may be opposed to the decisions of other States, we are not inclined to re-open a discussion of the reasoning on which they proceed. — Hanauer v. Doane, 12 Wall. 342; Hanauer v. Woodruff, 15 Wall. 439. The act of Congress of August 6,-1861, (U. S. Stat. vol. 12, 319), subjected to confiscation, property of any bind or description purchased or acquired, or sold, with intent to use or employ the same, or to suffer the same to be used or employed in aiding, or abetting or promoting the insurrection. The property in this case was not only sold with a knowledge that it was to be so used, but the seller was a member of the corporation formed to promote the use, and suffered it to be used first in the completion of a contract he had made to supply a contractor with the Confederate States, with iron for making -arms, and then in supplying the government itself. Such at least, there was evidence tending to show, and it was in reference to the evidence the instructions were given and refused. Contracts prohibited by a statute, even when a penalty is not imposed for a violation, are void. McGehee v. Lindsay, 6 Ala. 16. It is said this statute was not operative in Alabama when this contract' was made. But it is now of force, and as obligatory on the courts of justice within the State, as if Alabama had then as now recognized the constitution and laws of the United States, as the supreme law. The answer of JUDGE, J., to a similar argument in Shepherd v. Reese, supra, was: “ The contract stands, therefore, as one executed in a foreign government; and testing its legality by the lex loei eontraetus, it must be pronounced to have been a valid contract at the time and place it was made. But can it be enforced in a court acting under the authority and constitution of the United States? We understand the law to be well settled, that it can not be if it is opposed to the national policy or national constitution ?” In the instructions given and refused, we are considering, the Circuit Court did not err.

The second instruction requested by the appellant, asserts there is material difference between a sale to the Confederate States, or to its agents for its use, and a sale to an individual, who expected to profit by it in making contracts for its use with the Confederate States. The instruction does not point out, in what the difference consists. The guilty knowledge-of the seller, which avoids the contract may be more apparent in the one instance, than the other, from the character of the person with whom the contract is made. But in the legal consequences resulting from the contract, there is no difference. The reason in either instance the contract is held void, is, because it can not be reasonably supposed, that a party know’”g another intended an illegal purpose, would directly or indirectly furnish the means of accomplishing it, if he did not intend to aid and assist it. — Degroot v. Van Duger, 20 Wend. 390; Hanauer v. Doane, supra; Story’s Con. Laws, §§ 253, 254.

Expressions may be found in judicial decisions, and in text books, which seem to cast reproach on a party resisting the performance of contracts into which he has voluntarily entered, because of their illegality, and would indicate that the law looks upon the defense with disfavor. Similar expressions may be found in reference to the statute of limitations, and at one time, courts were so far led astray by them, that the statute lost much of its vigor. Such expressions are the individual opinions of the judge, or the text writer, employing them, and are not to be accepted as rules of law. The law does not regard the defense with favor or disfavor — it does not -inquire whether there are or are not circumstances in the particular case, which render the defense immoral and dishonest, or render it meritorious, and a shield to the party making it, from an unconscionable demand by his adversary, who may be cruelly -standing on the letter of the bond. The law does not look with favor or disfavor to the one party or the other, declares thém in pari delicto, and abstains from all interference between them.

The presumption of law is in favor of the legality of contracts, and when on the court is devolved the duty of construction, if it is fairly and reasonably susceptible of two interpretations — one rendering it legal, and the other illegal, that interpretation will be adopted which will support, rather than that which will defeat it. — 1 Brick. Dig. 386, § 164; 2 Chit. Con. 977. Following out the principle, illegality of consideration will not be inferred, when the evidence is justly and reasonably capable of being reconciled with the hypothesis of legality. The general rule applies, that fraud or illegality, is not to be presumed; the party affirming the one or the other, must prove it clearly, if it is denied. — 2 Chit. Con. 978. It is enough, however, if the evidence is sufficient to produce in the minds of the jury that degree of conviction essential in civil cases — it is not necessary as in criminal cases, that it should remove all reasonable doubt. If the appellant had requested the court simply to instruct the jury, that the defense in the present case ought to be clearly proved, we do not inquire whether the instruction ought to have been given — without an explanation, it would have probably misled; and instructions requested which without explanation, may mislead, are properly refused. The instruction as to'the clearness of. the evidence, was connected with the affirmation, that the law' disfavored the defense as immoral and dishonest, which was not correct, and being incorrect in part, was refused properly; for it was not the duty of the court to analyze the charge disconnecting the correct from the incorrect.

Let the judgment be affirmed.