23 N.H. 385 | Superior Court of New Hampshire | 1851
The general principle, that the validity of all contracts, including contracts of sale, is to be-determined by the law of the place of contract,(is every where admitted. Certain descriptions of contracts are prohibited either by common law or
The inspection laws of other States, though they may operate unfavorably to our interests, have never been made an exception to the general rule ; and contracts, which are either expressly or by implication forbidden by those laws, will be holden illegal. The principles to be applied to the construction of penal statutes, are not in any doubt. All statutes, whether penal or remedial, áre to be so construed as to carry into effect the intentions of the legislature. Fairbanks v. Antrim, 2 N. H. Rep., 105. A penal statute is to be construed strictly; and the courts will not reject any word in it, for the purpose of giving it a broader construction, but they are bound to construe it according to the obvious meaning of the words taken together. Woodbury v. Thompson, 3 N. H. Rep., 194. The construction is not to be narrowed, but effect is to be given to the plain meaning of the words; and when they are doubtful, that sense is to be adopted, which best harmonizes with the context, and the apparent policy and objects of the legislature. Pike v. Jenkins, 12 N. H. Rep., 155.
The first question in this case is: Does the statute of Massachusetts render the sale, on which the action is founded, illegal ? If the sale is prohibited, it is because a penalty is imposed upon one or both the parties to it. It is said, there can be no difference between a pecuniary penalty and a forfeiture of the article, which is the subject of the transaction; and we think it quite as reasonable to imply a prohibition from the one as the other.
The case recites the statute of Massachusetts. Shingles are-required to be of certain dimensions, and to be free of certain defects; and they are required to be surveyed and branded, i£ before they are sent from the town where they are made, or-
From the fair and obvious meaning of the language of the statute, beyond which it is not to be strained by construction, we cannot infer, that the legislature intended to prohibit such sales. A very slight change in the language would have made it clearly express what they are thus supposed to mean; and it is but just to them to suppose they intended just what they said and no moró. This conclusion is strengthened by the case in Massachusetts, to which our attention is called. Wheeler v. Russell, 17 Mass. 258. That case arose upon the statute of 1788, ch. 15, of which the section of the Revised Statutes here relied upon is a revision, but with modifications which we cannot but regard as very essential. By that statute, the sale of shingles not of the statute dimensions and qualities, and of shingles not surveyed, of whatever dimensions or description, was in terms prohibited ; and if shingles were sold without being surveyed, loth seller and luyer were made liable to a pecuniary penalty. Under that statute, it is too clear to be questioned, that no action would lie for the price of shingles sold in violation of the express terms of the law, as well as of the implied prohibition resulting from the penalty inflicted upon both parties to the sale. By the revision, the express prohibition of sales and the penalty upon the buyer and seller are repealed; while the forfeiture upon the offer to sell was retained. If the legislature intended to continue the prohibition of such sales, why was the statute altered in these respects ? It would be too idle to suppose, they could have intended to leave a point of this kind to implication, while they were striking out brief and apt words for the purpose they are supposed still to retain. This case then is clearly without authority in favor of the defendant, as to the point here involved, while we think, it bears with great force
The ruling of the court was correct, in relation to the admissibility of the notice or brief statement. It was a Shatter of defence, arising after action brought and therefore not admissible under the general issue. If it was admissible, the notice was superfluous. By the general rules, special pleas and brief statements of matters requiring a special plea at common law must be filed within ninety days after the first term. The court may however permit them to be filed afterwards, on payment of costs. No such leave was granted, because the defendant did not choose to submit to the terms the rules impose, and therefore did not ask it.
The defendant tendered to the plaintiff’s attorney a sum in full of his claim, less than the amount demanded; the attorney accepted it, but not in full. It is of this payment, (for a tender accepted is a payment,) that the defendant desires to avail himself under the general issue. Under the general issue, the party may avail himself of any payment made pendente lite, in reduction of the damages; but as such payment is an admission that the action was brought for good cause, it cannot avail under
Judgment on the Verdict.