Toler v. Armstrong , 4 Wash. C. C. 297 ( 1822 )

WASHINGTON, Circuit Justice

(charging jury). The rule of law, under which the defendant seeks to shelter himself against a compliance with his contract to indemnify the plaintiff for all sums which he might have to pay on account of the goods shipped from New Brunswick for the defendant, and consigned to the plaintiff, is a salutary one, founded in morality and good policy; and which recommends itself to the good sense of every man as soon as it is stated. The principle of the rule is. that no man ought to be heard in a court of justice, who seeks to enforce a contract founded in, or arising out of moral or political turpitude. The rule itself has sometimes been carried to inconvenient lengths; the difficulty being, not in any unsoundness in the rule itself, but in its fitness to the particular cases to which it has been applied. Does the taint in the original transaction infect and vitiate every contract growing out of it, however remotely connected with it? This would be to extend the rule beyond the policy which produced it, and would lead to the most inconvenient consequences. Carried out to such an extent, it would deserve to be entitled a rule to encourage and protect fraud. So far as the rule operates to discourage the perpetration of an immoral or illegal act, it is founded in the strongest reason; but it cannot safely be pushed farther. If, for example, the man who imports goods for another, by means of a violation of the laws of his country, is disqualified from founding any action upon such illegal transaction for the value or freight of the goods, or for other advances made on them, he is justly punished for the immorality of the act, and a powerful discouragement from the perpetration of it is provided by the rule. But after the act is accomplished, no new contract ought to be affected by it. It ought not to vitiate the contract of the retail merchant, who buys these goods from the importer; that of the tailor, who purchases from the merchant; or of the customers of the former, amongst whom the goods are distributed in clothing, a’though the illegality of the original act was known to each of those persons at the time he contracted.

I understand the rule, as now clearly settled, to be, that where the contract grows immediately out of, and is connected with, an illegal or immoral act, a court of justice will not lend its aid to enforce it. And if the contract be in part only connected with the illegal transaction, and growing immediately out of it, though it be in fact a new contract, it is equally tainted by it. The case before supposed, of an action for the value of goods illegally imported for another, or for freight and expenses attending it, founded upon a promise, express or implied, exemplifies a part of the above rule. The latter part of it -nay be explained by the following case: as if the importation was the result of a scheme to consign the goods to the friend of the owner, with the privity of the former, that he might protect and defend them for the owner, in case they should be brought into jeopardy, in consequence of some intended violation of law: I should consider a bond or promise, afterwards given by the owner to his friend to indemnify him for his advances on account of any proceedings against the property, or otherwise, as constituting a part of the res gestae, or of the original transaction, though it purports to be a new contract. For it would clearly be a promise growing immediately out of, and connected with the illegal act. It would be in fact all one transaction; and the party to whom the promise was made, would, by such a contrivance, contribute, in effect, to the success of the illegal measure. But if the promise be unconnected with the illegal act, and is founded on a new consideration, it is not tainted by the act; although it was known to the party to whom the promise was made, and although he was the contriver and conductor of the illegal act. Thus if A. should, during war. contrive a plan for importing goods from the country of the enemy on his own account, by means of .smuggling or of a collusive capture, and in the same vessel should be sent goods for B.; and A. should, upon the request of B., become security for payment of the duties; or should undertake to become answerable for expenses on account of a prosecution for the illegal importation, or should advance money to B. to enable him to pay those expenses; these acts, constituting no part of the original scheme, here would be a new contract, upon a valid and legal consideration, unconnected with the original act, although remotely caused by it; and such contract would not be so contaminated by the turpitude of the offensive act, as to turn A. out of court when seeking to enforce it; although the illegal introduction of the goods into the country was a consequence of the scheme projected by A. in relation to his own goods. Whether the plaintiff had any interest in the goods imported by the defendant from New Brunswick; or was the contriver of, or concerned in a scheme to introduce those goods, or even his own, if he had any. into the United States, by means of a collusive capture, or otherwise; or consented to become the consignee of the defendant’s goods, with ■a view to their introduction; are questions which must depend upon the evidence, of which you must judge. It ought however to be remembered, that it would seem from the letters of introduction of the defendant 'to the plaintiff, some time after this importation had taken place, that these gentlemen were, at that time, strangers to each other.

It is necessary, before I conclude my observations upon this part of the case, to observe, that what was said by the supreme court in the case of The George [supra], with respect to the evidence, is not to be regarded by the jury, so as to prejudice either of the parties in this cause. As to the account and receipt of Dekoven for the value of the goods delivered by him to the defendant, it has nothing to do with the action now before you; which is brought to recover certain sums of money expended by the plaintiff for the defendant, in relation to those goods, upon the •faith of the defendant’s promise to indemnify ..the plaintiff ■ for making the advances. If, ' notwithstanding the plaintiff’s order upon De-koven to deliver the goods to the defendant, he chose to purchase them from Dekoven, it furnishes no reason why the promise to the plaintiff should not be complied with.

The jury having been out some time, returned into their box, and requested the instruction of the cour upon the following questions, viz. whether Toler must' have an interest in Armstrong’s goods to constitute him a participator in the voyage? or, if simply having goods on board will constitute him such?

WASHINGTON, Circuit Justice. The mere circumstance of the plaintiff having goods on board would not constitute him a participator • in the illegal importation, so as to affect his right of recovery in this action; but being interested in the goods imported by the defendant, would have that effect.

Verdict for plaintiff for the whole of his demand.

An exception was taken to this charge, and the judgment was affirmed on writ of error. 11 Wheat. [24 U, S.J 258.