25 N.H. 67 | Superior Court of New Hampshire | 1852
It is a general and well established rule that no action can be maintained on a contract made in viola-
The provision of the Revised Statutes on this subject, ch. 118, § 1, is as follows : “ No person shall do any work, business or labor of his1 secular calling, to the disturbance of others, works of necessity and mercy excepted, on the first day of the week, commonly called the Lord’s day, nor shall any person use any play, game or recreation on that day, or any part thereof.”
Whether the letting of a horse on Sunday is necessarily and in all cases a work or business to the disturbance of others, and whether every ride or drive made on Sunday for mere relaxation and exercise must be regarded as an unlawful recreation within the meaning of the statute, it is not necessary in this case to decide. The instructions of the court to the jury went upon the ground that the contract was illegal, and in this respect were sufficiently favorable to the defendant. Was the other part of the charge correct, in which the court instructed the jury that if the defendant voluntarily drove the horse to a place beyond that for which he was hired, he was liable in trover ?
If the owner places his property in the hands of another to be used temporarily for an unlawful purpose, or in any unlawful way, though the contract which he makes respecting the illegal use is void,'he does not forfeit his property in the thing which he has thus delivered to another on an illegal contract. Where the property is intrusted to another to be wholly devoted and appropriated to an illegal purpose, perhaps the law is different; as in the case where goods are shipped to be carried to the public enemy.
In Dwight v. Brewster, 1 Pick. 51, the action was case,
The same general doctrine is implied in Frost v. Hull, 4 N. H. Rep. 153; and we have seen no authority which tends to contradict the rule that in a case like this, though the contract may be void, the property in the thing bailed for the illegal use, remains with the former owner.
The property in the horse remained therefore in the plaintiffand it would seem to follow as a necessary conclusion that for a direct, substantial invasion of that right, he might
The action of trover is founded upon property in the plaintiff, and a conversion by the defendant. A conversion consists in an illegal control of the thing converted, inconsistent with the plaintiff’s right of property. If one hire a horse to be driven to one place, and voluntarily drive him to another, it is a conversion, and trover will lie. Wheelock v. Wheelwright, 5 Mass. 104.
This is in accordance with the law in other cases, where the bailee for one purpose diverts the thing bailed to another ; as where a carrier uses, or sells, or delivers to the wrong party, the commodity which he received to transport. The circumstance that the property is in the hands of the bailee with the license of the owner to use it for one purpose, gives no right to use it for another; and the invasion of the owner’s right of property is as complete, when the bailee goes beyond his license and duty, as if the control over the property were usurped without any bailment. There can be no doubt, on the authorities, that trover would be a proper remedy in this case, if the illegality of the contract, on which the defendant took the horse into his possession,^J had not been set up as a defence.
If, however, though there has been in this case a technical, legal conversion, the real and substantial claim of the plaintiff is merely to recover damages for the breach of an illegal contract; if he must, notwithstanding the form of his action, claim in fact by and through his contract, he cannot evade the consequences of his illegal act by adopting a fictitious action, allowed in ordinary cases for the purposes of the remedy. In some cases the plaintiff, for convenience of his remedy, when his claim arises under a contract, is
The question, then, becomes' material whether the only real injury which the plaintiff suffered was by a breach of the contract; or whether the driving of the horse to another place was a substantial invasion of the plaintiff’s right of property.
Wh'en the defendant voluntarily drove the horse beyond the limits for which he was hired, he acted wholly without right. He then took the horse into his own control, without any authority or license from the owner. The conversion was in law as complete, the wrongful invasion of the plaintiff’s right of property was as absolute as if, instead of driving the horse a few miles beyond the place for which he had hired him, he had detained and used him for a year, or any other indefinite time, or had driven him to market and sold him. If taking the wrongful control of the horse, and driving him ten miles, was not a substantial conversion, how far must the defendant have driven him ? how long must he have detained him? and what other and further wrongful acts was it necessary that he should do, in order to make himself a substantial and real wrong-doer ? It would seem to be quite clear, that if the original act, assuming control over the hors,e, was not a substantial invasion of the plaintiff’s right of property, no subsequent use or abuse of the horse by the defendant could make it so; and that if the defendant cannot on the facts of this case be charged for the conversion of the horse, he could not have been if he had sold or wilfully destroyed him. In other words, the plain
From these premises the conclusion would seem to follow that trover may be maintained on the facts of this case. If the plaintiff made an illegal contract- respecting the horse,, that contract is void; but the illegal contract being for &>
Driving the horse beyond the place for which he was hired is a wrongful invasion of the plaintiff’s right of property, and a substantial conversion. In trover for such a conversion, the plaintiff’s claim is neither in form nor in substance by, through, or under the illegal contract, and the invalidity and illegality of the contract are no defence to the suit. The contract is no link in the chain of the plaintiff’s ease; he shows the contract, which was invalid and illegal; but notwithstanding the contract and in spite of it, his right of property remained. That right has been directly invaded by the defendant’s wrongful act, and this action is the appropriate remedy.
In this case, the defence set up is that the plaintiff’s contract was not merely invalid, as in the case of infancy, but illegal; and that in showing the conversion of the horse, by driving beyond the place for which he was hired, the plaintiff was obliged to prove his own illegal act. It has been sometimes laid down in general terms that the plaintiff cannot recover, if, in order to make out his case, he is obliged to show his own illegal act. This is undoubtedly the rule where the plaintiff’s illegal act is in whole or in part the foundation of his claim. In the cases usually cited as authorities for this rule, the plaintiff’s claim was made through or under the illegal act. Simpson v. Bloss, 7 Taunton, 246, (2 C. L. 89;) Fivaz v. Nichols, 2 M. G. & S. 500, (52 C. L. 500.) But where the wrong is done to the plaintiff’s property, and the facts are connected with an illegal contract respecting the property, which does not affect the plaintiff’s right of property, these cases do not show that he cannot recover, because he is incidentally obliged to prove a
Phalen v. Clark, 19 Conn. 421, which appears to have been a very well considered case, is strongly in point. The plaintiff in that case could not show his property in the lottery ticket, which was the subject of the suit, without showing his illegal contract with the defendant, respecting the ticket; yet, as it appeared when the illegal contract was shown, that it did not extend to the plaintiff’s property in the ticket, the court held him entitled to recover. The true rule is, we think, stated in that case as follows: “ If the plaintiff requires any aid from an illegal transaction to establish his demand, he cannot recover it; or, in other words, if he is unable, to support it without relying upon an unlawful agreement between him and the defendant, he must fail.” 19 Conn. 432. Upon this point the dissenting opinion o£ Ellsworth, J. would not seem to weaken the authority of the case; for his dissent was put on the ground that the fraud of the defendant was committed in the execution of his illegal agency. He says: “ The plaintiffs rest and must rest their claim to recover, on fraud in their agent, or fraud in a forbidden agency. The payment is an act in the progress and consummation of the illegal enterprize against the laws of this State.” The majority of the court were of opinion that the illegal contract of the plaintiff was at an end, and that the injury was to the plaintiff’s right of property in the ticket, notwithstanding the illegal contract which had been made respecting it. Lewis v. Littlefield, 15 Maine, 233, and Dwight v. Brewster go to establish the same rule.
Nor is the plaintiff obliged to garble or suppress the facts of his case. When they all appear, his illegal act still leaves him his right of property in the horse, and his remedy for the conversion. It is not like the case of Booth v. Hodg
One case of high authority we are obliged to regard as in conflict with the conclusion to which we have arrived, and that is the recent case of Gregg v. Wyman, 4 Cushing, 322, in the supreme court of Massachusetts. The able and elaborate judgment in that case, and the great respect due to all the decisions of that court, have caused the principal hesitation which we have felt in holding that the present action could be maintained.
We understand the decision in Gregg v. Wyman to be put, in the first place, upon the ground that the claim of the plaintiff, though in form for a tort, was in substance to recover damages for the breach of the illegal contract. This position does not appear to be very confidently maintained, and would seem- to be entirely inconsistent with the ease of Homer v. Thwing, 3 Pick. 492, decided in the same court. If the eases are to be regarded as in conflict, we prefer the rule of Homer v. Thwing.
The other ground is that the plaintiff could not prove his case without showing the illegal contract by which the horse went into the defendant’s hands; that he could not show the conversion of the horse by driving beyond the place for which he was hired, without showing the terms of the illegal contract; and, therefore, as he was obliged to show his own illegal act in making out his case, he cannot recover.
Granting that in order to show the wrongful act of the defendant, upon which he relied, the plaintiff was obliged to prove that he had made an illegal and void contract and violated the law, the question still recurs and remains whether the consequences of his illegal act affect his right of property in the horse, and whether the defendant’s act was a direct injury to that right, or only in substance a breach of the illegal contract. The general property remained iu the plaintiff. That does not seem to be any
We do not understand that we are by this decision infringing upon the rule that no action can be maintained on a contract made in violation of law; we mean to leave that principle wholly untouched; but are of opinion that it does not reach to this case.