Hoyt v. Allen — 2 Hill & Den. 322

Majority

p. 322

Hoyt vs. Allen and others.

Headnote

In an action on the case by L. H. against the defendants as common carriers, for the negligent loss of the plaintiff’s goods, a plea alleging that the contract for transportation was made in this state between the defendants, and “ L. H. & Co.”—that the said L. H. made the contract—that he transacted business in this state under the designation of “ L. H. & Co.”—and that the 44 & Co.” did not represent an actual partner: Held bad on demurrer, for uncertainty.

To have brought the case within the statute forbidding the transaction of business in the name of. a fictitious firm, the plea should have averred that the contract was made by L. H. while engaged in the transaction of busi

p. 323

ness under the fictitious name of “ L. H. & Co.,” and that such transaction of business related to the very goods in question.

Most matters of defence to actions on the case against common carriers may be given in evidence under the general issue; and, it is seldom advisable to resort to a special plea. Semble.

Demurrer to plea. The declaration was in case by Lucius Hoyt against the defendants as common carriers, for neglect and carelessness in respect to the plaintiff’s goods which were delivered to the defendants and agreed by them to be transported from the city of New-York to the mouth of St. Joseph’s river, Michigan, but which were lost on their passage. The defendants pleaded the general issue and a special plea alleging “ that the goods in question were delivered to the said defen, dants in pursuance and by virtue of a contract for the transportation thereof from the city of New-York to the mouth of the St. Joseph’s river in the state of Michigan, made in the city of New-York between the said defendants, and the said Lucius Hoyt & Co. and not otherwise,” with an averment “ that the said Lucius Hoyt made the contract aforesaid, transacted business in this state under the designation of Lucius Hoyt & Co., and that the said 1 & Co.’ did not represent an actual partner or partners.” The plaintiff demurred to the plea and the defendant joined in demurrer.

M. T. Reynolds, for the plaintiff.

A. Gardner, for the defendants.

By the Court,

Admitting the principle of the plea to be correct,^[1] still it is impossible to support it, if the copy in the demurrer book be correct.

To bring the case within the 2 R. S. 581, 2d ed. §§ 40,

(a) (a) Every contract made for or about any matter or thing which is prohibited and made unlawful by any statute, is a void contract, though the statute itself doth not mention that it shall be so, but only inflicts a penalty on the offender; "because a penalty implies a prohibition, though there are no prohibitory words in the statute. (Per Holt, Ch. Justice, in Bartlett v. Vinor, Carth. 252; Skinner 323, S. C.)

p. 324

41, forbidding the act of trading in the name of a fictitious firm, the plea should have averred that the plaintiff’s transaction of business as Lucius Hoyt “ & Co.,” the latter being fictitious, related to the very goods in question. Non constat, from the plea, that Lucius Hoyt Sp Co. may not have been a real firm of which the plaintiff was a member when the goods were delivered for transportation. The plea avers in general words that the plaintiff transacted business under the designation of a fictitious firm. That may have been, and yet this particular business have been done when the plaintiff was a member of a real firm which acted under the designation supposed. It is no objection, per se, that the plaintiff delivered his own goods for transportation in the name of his firm, if that firm was a real one. In short the plea no way connects the transaction in question with the offence contemplated by the statute. It says the plaintiff transacted business in the name of a fictitious firm. When he did so, or in respect to what he thus transacted business, or what the business was, does not appear.

There must be judgment for the plaintiff without leave to amend. The general issue is pleaded, and the attempted defence can more properly be shown under that issue than by a special plea, which is rarely a very happy mode of introducing any defence in case against common carriers:

Judgment for the plaintiff.