Pickard v. Bayley , 46 Me. 200 ( 1858 )

The opinion of the Court was delivered by

May, J.

This is an action of assumpsit against the defendants, as owners of the schooner Sarah, for the non-performance of a contract on their part, by which they agreed to take and carry with due care a quantity of pressed hay for the plaintiff, on freight, from Aina, Me., to Boston, Mass. The evidence in the case tended to show that said hay was wholly spoiled and lost, for want of proper care and attention after its delivery upon the wharf for transportation, in pursuance of said contract.

The principal ground of defence was that the said contract was illegal and void, because the bundles of hay were not branded in conformity with the requirement of the Revised Statutes of 1841, c. 64, § 1. This section requires that “ all hay, pressed and put up in bundles for sale in this State, shall be branded on the bands or boards enclosing the same, with the first letter of the Christian name and the whole of the surname of the person packing, screwing or otherwise pressing the hay, and also with the name of the place where the hay was pressed, or where the person packing or screwing the hay shall live, with the name of the State.” By section 2, it is provided that “ all screwed hay, offered for sale or shipping, unless branded in the manner mentioned in the preceding section, shall be forfeited,” &c.; and by section 3, it is further provided, that “if the master of any vessel shall take on board a vessel pressed hay not branded as before prescribed, he shall forfeit and pay two dollars for each bundle so received.” In view of these several provisions, it is very clear that any contract for the transportation of pressed hay on board of any vessel, when the same is not branded in conformity with the provisions of the statute, is absolutely void. It is a contract which cannot be performed without a violation of law; and no damages can be recovered for the breach of a contract which cannot lawfully be performed. It has been held, under this statute, that a contract for the sale of pressed hay not branded as the statute requires, at the time of its delivery, cannot be enforced, and no damages can be recovered for its non-fulfilment. Buxton v. Hamblen, 32 Maine, 448.

It appears, from the evidence in the case before us, that the hay contracted to be shipped, was pressed by John W. Plummer of Aina, with a press belonging to him and one Paine, and that he branded a part of it with the name of his father, “ N. Plummer,” with a branding iron that belonged to him, and that this was done with his father’s consent. The residue of the hay was not so branded by him, but the weight of it was marked on the bales with red chalk, and he told the plaintiff he could mark it when he pleased. The plaintiff testified that he afterwards procured a branding iron of Nathaniel Plummer, the father of John W. Plummer, and branded the hay “ N. Plummer” with it, and also borrowed another marking iron of a Mr. Dole, with which he branded all the hay thus : — “Alna, Me.”

Nathaniel Plummer testified that he was the owner of the branding iron, and let the plaintiff use it; that he did not press the hay and was not present when it was done, and only knew that his son went to press it, and he had no connection with the contract for pressing it.

Upon this evidence, the plaintiff, by his counsel, contended that such marking was a compliance with the law, while the other side contended that it was insufficient. The presiding Judge, for the purpose of settling the damages and some other questions connected with the case, instructed the jury, pro forma, that if the plaintiff had satisfied them, from the whole evidence, that the hay which was agreed to be shipped, was all marked with the words, “ N. Plummer, Alna, Me.”; and that the hay was screwed or pressed by his son, John W. Plummer, at said Alna; and that both said N. Plummer and John W. Plummer lived in said Aina at the time; and that said hay was so marked by the consent and authority of said N. Plummer, and John W. Plummer, the plaintiff, if the other facts necessary thereto had been satisfactorily proved, might recover.

This instruction, in view of the express language of the statute, was clearly erroneous. The statute requires the name, to be branded on the bands or boards enclosing the hay, to be that of the person pressing it, and not that of any other person, by his consent and authority. Such a construction of the statute, as is urged for the plaintiff, would have little, if any tendency to prevent such frauds as the statute was designed to suppress, but, on the contrary, would tend to deceive, by holding out to the purchaser or shipper that the hay ‘was actually pressed by the person whose name should happen to be branded thereon.

But it is now contended that, as the contract declared on contains a promise to take care of the hay and prevent injury to it, that part of the contract which is alleged, and relates to the shipping of the hay, may be rejected as surplusage, and the plaintiff can recover for the non-fulfilment of what remains. This cannot be so. Because the duty and the promise to take due care of the hay springs out of the contract of affreightment or shipment, and is incidental to it, and is, therefore, a part of one entire contract, which is unlawful as a whole. Beside this, there was no consideration for any of the incidental undertakings, springing out of the contract, other than the unlawful act of shipping, which the defendants had on their part stipulated to perform. The declaration does not allege, nor does the evidence show, any independent engagement, aside from the principal contract, entered into by these defendants, in relation to the hay, or the care which should be taken of it after its delivery upon the wharf. Their duties, in regard to the hay, all arose from that principle of law by which a party, who contracts to do a certain thing, is bound to use all reasonable means necessary to effect it. Savage v. Whittaker, 15 Maine, 24. It is equally clear, in our judgment, that, under such circumstances, when the principal thing fails to be binding on account of its illegality, all its incidents are alike without validity or force. The other points raised in defence it becomes unnecessary to determine.

Exceptions sustained, verdict set aside, and new trial granted.

Tenney, C. J., and Rice, Cutting, Appleton, and Goodenow, J. J., concurred.