Baker v. Page , 11 Me. 381 ( 1834 )

West on J.

delivered the opinion of the Court.

Two grounds of defence are urged in this action. That there was no consideration for the promise declared on ; or if any, that it was unlawful.

The plaintiffs have received the logs they purchased, and have converted them to their own use. They have enjoyed what they expected, which they regarded as valuable. With a full knowledge of all the facts, they assumed the chances attending the sale ; and if they are likely to have an unfavorable issue, nothing has happened, which might not have been foreseen. It is said the consideration has failed ; that the Barings were the owners of the logs; and that the plaintiff had no valuable interest whatever in them. The Barings were the original owners of the timber while standing, and it was proved that they have notified the defendants, that they claim of them the full value of the logs. From the authorities cited for the defendants, it appears that this claim may be enforced. If they are also holden to pay the plaintiff, they may be twice charged for the same property. If they are brought into this difficulty, and the bargain has turned out to be altogether an improvident one, they made it with their eyes open ; without fraud or imposition, on the part of the plaintiff. He did not profess to be the undisputed owner of the logs ; he apprised the defendants of the right of the Barings, and sold expressly subject to their claim. The favorable chances they took at the time were, first, that the Barings might never look up their claim ; secondly, that they might call upon xhe plaintiff, he being the wrongdoer, charging him either as a trespasser, or as the receiver of money to their use, upon the sale of the logs to the defendants, which they might affirm and ratify ; or thirdly, if resort was had to the defendants, the Barings might be satisfied with the value of the timber while standing, which would indemnify them for the injury they had sustained. We entertain no doubt, that these chances constituted a sufficient consideration, if lawful, to support the promise.

The law will not enforce a contract, founded upon an illegal consideration. This principle is well settled. The authorities to this point, cited for the defendants, present a variety of cases, m which the rule has been applied. The wrong here consisted in the trespass committed upon the land of another, in which the defendants had no agency or participation. The transfer of the timber from hand to hand, had no tendency to increase the injury. Every sale enlarged the remedy of the Barings. It increased their chance of eventual indemnity, by adding to the number of the persons liable to them. A sale, tending to defraud or injure third persons is unlawful; but the sale in question is clearly not of that character. The law does not avoid every contract connected with an unlawful transaction. Courts have gone great lengths in sustaining collateral contracts, which have been occasioned by violations of law. Thus in Faikney v. Reynous, 4 Burr, 2069, losses having been incurred by two persons, who were jointly concerned in certain contracts prohibited by law, and the whole having been paid by one of them, a bond given to secure the proportion of the other was enforced. In Farmer v. Russell, 1 Bos. & Pull. 296, it was held, that if A. receives money of B. to the use of C,, it may be recovered by C. in an action for money had and received, though the consideration on which B. paid it, be illegal. In Armstrong v. Toler, 11 Wheat. 258, Marshall C. J. says, “ to connect distinct and independent transactions with each other, and to infuse into one, which was perfectly fair and legal in itself the contaminating matter which infected the other, would introduce extensive mischief into the ordinary affairs and transactions of life, not compensated by any one accompanying advantage.”

Judgment on the verdict.