Coventry v. Barton — 17 Johns. 142

Majority

p. 121

*Coventry against Barton.

Headnote

If a consideration be illegal; it will not support an assump-sit. As if one request or direct another to do an act which he knows, lathe b®nj promse to‘in- . ⅛ void; but if the {j^cfaf'the instance or by anoS^dies not know, at ⅛⅛(Committing a trespass, the valid* As, where the ⅝¾ 0bte“® the overseer of ce“ tain road, was “,,⅛⅛⅞ ⅛* Highways, and aísíofthccóm- ¡mukmter of highways, to pull down and remove a turnpike gate and fence, erected at the intersection of the road, on which the parties were working, with a turnpike road, supposing it to be a nuisance, and the plaintiff, accordingly, removed the gate and fence, on the promise of the overseer to indemnify him; this was held to be a valid promise, on which the plaintiff might maintain an action to recover of the defendant an indemnity, for what he had been compelled to pay on a judgment in an action of trespass recovered against him, by the turnpike company who.se gate had been so removed,

THIS was an action of assumpsit, tried at the Columbia circuit, in November, 1818, before Mr. Justice Yates.

and the The defendant was, in 1812, overseer of highways plaintiff was assessed to work on the highways within the defendant’s district, and when working with others, on the road under the direction of the defendant, they came to a turnpike gate placed at the intersection of the Rensselaer road with the Farmer’s turnpike road. The commissioner of highways, who was also present, ordered the defendant to set his men to work and take away the gate ; upon which the detendant ordered the plaintiff, among others, to take the gate away, and, accordingly, the plaintiff and others removed the gate; while the plaintiff was at work at removing part of the fence to which the gate was attached, the defendant directed him how to proceed, and said, “I wifi bear thee out in it.” One of the witnesses testified, that the defendant ordered the plaintiff and the others to remove the gate, and said, that “ he would see them out in it, or that he would indemnify them.” Several actions of trespass were brought by the Farmer’s Turnpike Company against the individuals engaged in removing the gate and fence, and among others, the plaintiff, against whom a judgment was recovered in November, 1813, for 215 dollars and 8 cents damages, the amount of which judgment had been paid by the plaintiff; and to recover that amount the present suit was brought against the defendant, on his promise to indemnify the plaintiff. It was proved, that the defendant was present when the action brought by the turnpike company against the plaintiff was tried, and that he knew of the suit.

#On the evidence of the facts above stated, the judge ordered the plaintiff to be nonsuited.

A motion was made to set aside the nonsuit, and for a new trial which was submitted to the court without

delivered the opinion of the court. The plaintiff cannot pretend to claim on the ground of contribution, for it is well settled that, as between trespassers, there can be no contribution. In such case, the law will not imply a promise. It is a general and well established principle, that, if the consideration be illegal, it will not uphold an assumpsit : as in the case put in the books: the defendant, in consideration of 20 shillings, assumed to pay 40 shillings if he did not beat J. S. out of such a close. The common law prohibits every thing unjust, or contra bonos mores, and a contract contravening these principles is void. But if one person request another to enter into Bis land, and, in his name, to drive out the beasts, and impound them, and promise to save him harmless, this is a good assumpsit, though the act is tortious. (Winch. 49. 1 Com. on Con. 31.) In Allaire v. Ouland, ( 2 Johns. Cas. 54 .) where the plaintiff was the servant of the defendant, and had been commanded by him to enter into the locus in quo, claiming it, and declaring it to be his own, and promising to indemnify the plaintiff, the court say, if this had been true, the entry would have been lawful; the plaintiff, relying on the truth of the defendant’s declarations, did enter; the act, on his part was, therefore, lawful, and a good consideration for the promise. And where a promise was made to an innkeeper, that if he would keep one B., (whom the defendant pretended to have arrested on a commission of rebellion.) for one night, in his inn, as a prisoner, he would save the plaintiff harmless, judgment was given for the plaintiff, who had been sued for a false imprisonment, and a recovery had against him. The court say, that, whether B. was arrested lawfully or not, the illegality thereof did not appear to the plaintiff. (1 Win. Abr. 299. pi. 27.) But if the act directed to be done appears to be unlawful, then the agreement will be unlawful and void. (Buller, N. P. 146.)

1 have no hesitation in saying, that it is a true and just distinction between promises of indemnity which are, and those which are not, void; that if the act directed or agreed to be done, is known, at the time, to be a trespass, an express promise to indemnify would be illegal and void ; but if it was not known at the time to be a trespass, the promise of indemnity is a good and valid promise. ( Coup. 343.)

I am strongly inclined to the opinion, that the plaintiff has himself within the latter distinction. The question upon the argument of the case of The Farmer’s Turnpike v. Coventry, ( 10 Johns. Rep. 389 .) turned upon the right to erect this gate where it was put; the defendant’s counsel contending, that the gate could not be set up within three miles, at least, of the compact parts of the city of Hudson, as defined by a map confirmed by the act of 1807. We decided against that construction : but there was, at least, color for the ground taken. Again, Hardick, who was a commissioner of highways, brought

p. 123

directed the defendant to set his men to work, and take the gate away, upon which the defendant ordered it to be done. Here, then, is the case of the commissioner and overseer of highways both agreeing in considering tire gate as a nuisance, and both directing it to he removed. The plaintiff was acting in a subordinate capacity. He perceived a gate standing directly across an old road, and his superiors, whom he had a right to think well informed, pronouncing it, in effect, to be a nuisance. I think the conclusion inevitable, that the plaintiff did not know, at the time, that the act he was doing was a trespass; and then the promise of indemnity is valid.

There must be a new trial, with costs to abide the event of the suit.

New trial granted.