Ingersoll v. Randall

I am obliged to dissent from the decision in this case.

By the Court

Sec. 1, Ch. 60, p. 99, Laws 1868, makes it the duty of any person having and operating a threshing machine, the horse power and separator of which are‘connected by a tumbling rod, to box or cover and inclose the knuckles and rods between the outside horse and the machine, with a board box, so that no part thereof shall be exposed, whereby persons shall be liable to be injured when the machine is in operation.

Section 2 provides that any person who shall refuse or neglect to comply with the foregoing requirement, shall be deemed guilty of a misdemeanor, and shall be fineable in a sum not exceeding fifty dollars. The complaint states that the plaintiff, in the fall of 1868, at the request of and for the use of the defendant, threshed 1658 bushels of grain ; that said threshing was reasonably worth $69.84, and that the defendant promised to pay the plaintiff that sum. The threshing was then the consideration of the promise. One defense set up in the answer is that the threshing was done with a threshing machine the knuckles and rods appertaining to which were not covered as the law. requires. This is a good defense. As remarked in Solomon vs. Dreschler, 4 Minn., 279, “ where a statute inflicts a penalty for doing an act, although the act is not prohibited in terms, yet it is thereby rendered unlawful, because 'the infliction of a pen*404alty implies a prohibition.” See also White vs. Burr, 3 Cushing, 449 ; Griffith vs. Wells, 3 Denio, 226 ; Miller vs. Post, 1 Allen, 434; Cundell vs. Dawson, 4 Manning, Granger and Scott, 376. The statute before cited not only makes it a duty to cover the knuckles and rods, but it makes neglect or refusal so to do a misdemeanor to which a penalty is affixed. The plaintiff, then, in operating his threshing machine in threshing for the defendant without covering the knuckles and rods, was doing that which is prohibited by law. The threshing which was the consideration of the defendant’s promise was unlawful, and therefore will not support the promise. Bensley vs. Bignold, 5 B. & Ad., 335 ; Cunard vs. Hyde, 105 E. C. L. 1; Chitty on Contracts, 658 and note (“A”); Armstrong vs. Toler, 11 Wheat., 272, and eases supra; Emery vs. Kempton, 2 Gray, 257. The statute was doubtless enacted in view of the loss of life, and severe personal injuries frequently resulting from the use of these machines with exposed rods and knuckles. And the object (as the law shows upon its face) was to prevent such accidents, by prohibiting and preventing these machines from being operated unless the precautions prescribed were taken. It was a matter of public policy that such precautions should be taken, and the law is based, as are many other penal laws, upon the interest of the State in the personal safety and welfare of the citizen. It stands upon the same principles as the law treated of in Solomon vs. Dreschler, 4 Minn., 278.

It was said by Lord Tenterdon in Wetherill vs. Jones, 3 B. & Ad., 221, that “ where a contract which a plaintiff seeks to enforce is expressly or by implication forbidden by the statute or common law, no court will lend its assistance to give it effect, and there are numerous cases in the books where an action on the contract has failed, because either *405the consideration for the promise or the act to be done was illegal, as being against the express provisions of law, or contrary to justice, morality and sound policy. But when the consideration and the' matter to he performed are loth legal, we a/re not a/ware that a plaintiff has ever leen precluded from recovering ly cm infringement not contemplated ly the contract in the performance of something to le done on his part. ” See also Smith's Law of Contracts, 151-154, (31 Law Lilrary.) "We do not discover that the doctrine, or rather dictum, announced in the language which we ital-icise above, is recognized by other text writers upon the law of contracts, nor in other adjudged cases, and the case of Cundell vs. Dawson supra, seems to cast some doubt upon its soundness, but conceding it to be good law, (for argument’s sake), it will not aid the plaintiff in this case. This action is founded upon a promise, the consideration of which is the threshing performed by the plaintiff at defendant’s request. Though this promise may have been express, it cannot for that reason stand upon any better footing than if it had been implied by law. The whole basis of the alleged cause of action, to-wit, the plaintiff’s services in threshing, the wjfole and only consideration for the alleged promise and obligation of the defendant, was a constant and direct violation of the law. It has also been said that where an illegality occurs in some matter collateral to the contract, the contract is not thereby rendered illegal. See Warren vs. Manuf. Ins. Co., 13 Pick., 522; Boardman vs. M. F. Ins. Co., 8 Cush., 585 ; Ocean Ins. Co. vs. Polleys, 13 Peters, 164; Ferguson vs. Norman, 5 Brigham, N. C. 76; Cope vs. Rowlands, 2 M. & W., 149; Redmond vs. Smith, 7 Mans. & Gr., 471. Put this doctrine can have no application ■where the illegality, as in the case at bar, taints the entire consideration of the promise sought to be enforced.

*406The demurrer to this defense was therefore improperly-sustained, and the order sustaining it is accordingly reversed.