Whitis v. Polk

Ogden, J. This was an action brought by the appellee against the appellant, in 1867, to recover the price or value of a certain lot of cotton delivered to appellant in the early part of the year 1864, to be taken to market, to be sold by appellant. The cause was submitted to a jury in the' District Court, and a judgment rendered for the plaintiff below, and the defendant has brought the case to this court by an appeal. The suit was instituted upon an alleged specific contract, and yet it is somewhat difficult to determine from the pleadings or evidence what that contract was, when entered into by the parties. Indeed, the main questions of inquiry in the court below appear to have been the character and extent of the contract sued on. In his original petition, the plaintiff below set up the contract to be an agreement for the transportation of about thirty-three thousand pounds of cotton to market for sale, and alleges that he agreed to and did furnish defendant with the cotton, who promised to obtain permits to take the same beyond the limits of the Confederate States into Mexico, and to pay all freight and cost of shipment to Mexico, or Liverpool, England, and there sell the same, and pay to plaintiff one-half of the gross proceeds of-the sale. In his amended petition, the plaintiff varies materially the description of the contract sued on, both as to the quantity of the cotton delivered, as well as the market to which the same was to be taken. The defendant claims that by the contract the plaintiff was to furnish the cotton, and that he was to take it into Mexico ; and that for his trouble, care, and expense of taking it across the Mexican line, he was then and there to become owner of an undivided half of said cotton, and have full power and authority to sell the whole cotton there, or at his discretion to ship the same to any other market, at the equal cost of himself and — 622 — plaintiff, and that the net proceeds of the sale, after deducting all charges and expense beyond the Mexican line, was to be equally divided. The facts in regard to the carrying out of this disputed contract are, that the defendant below received the cotton in Caldwell county, transported it to the Bio Grande, and on the 12th of May, 1864, crossed the same at Piedras Megras into Mexico, and from thence transported the same through Mexico, by the way of Monterey, to Matamoros, and there shipped it to Mew York, where it was sold in 1865. And yet the jury trying the case appear to have disregarded the pleadings of plaintiff and defendant, the evidence adduced on the trial, and, on a material question, the charge of the court, and saw proper to find a verdict in disregard of all. They appear to have attempted to make a contract for the parties, that the cotton was to be transported to Monterey, Mexico, at the exclusive cost and expense of the defendant, and there sold, and the gross proceeds of the sale there divided between the plaintiff and defendant. Such an anomalous verdict, unwarranted by the pleadings, in direct conflict with the evidence, and in disregard of the charge of the court, can form no legitimate foundation for a judgment, and should have been set aside by the court trying the causo, and a new trial granted. Mo specific contract is set out in the pleadings, and we have to look to the evidence to determine what that contract was, and the rights and obligations of the parties under the same. The witnesses for the plaintiff prove the contract to be substantially that the plaintiff was to buy Bowles’s cotton, and deliver it to the defendant, who was to procure the necessary permits from the authorities for shipping it, and transport the same to a Mexican market at his own expense and there sell it, and the proceeds to be equally divided between the parties. In all mutual contracts between parties, when the same are not fully and definitely expressed, the law requires such a construction placed upon them as will as nearly as possible secure to each equal and impartial justice. (See 2 Parsons on Con — 623 — tracts, 491.) Applying this rule to the contract as proven by plaintiff’s witnesses, it is not difficult to arrive at the true extent of the same and the intent of the parties, as it is clearly established by the same testimony that, at that time, it cost one-half of the cotton to get it into Mexico ; that there was a Mexican market for cotton on the Rio Grande; and therefore the contract as proven cannot be legally construed as compelling the defendant to transport the cotton further than the first Mexican market, and this appears to have been the custom and price for getting cotton to Piedras Negras at that time. We are therefore forced to the conclusion that the contract, as proven by plaintiff’s witnesses, bound the defendant to transport the cotton only to Piedras Negras; and that, when there, one-half of the cotton, or the proceeds of the sale of the same, became absolutely his, and, had he thought best, he might have sold the whole cotton and divided the proceeds with the plaintiff, or he might have sold one-lialf of the cotton and paid the money to plaintiff, and have done as he pleased with the other half as his own. Therefore, had the jury found a verdict for the plaintiff for the price of one-half of the cotton at Piedras Negras, at the time it reached that place, they would have at least had some shadow of evidence to sustain their verdict. But it is difficult to understand by what process of reason, or' by what rules of law, the defendant, under all the evidence of the ease, could be held bound to haul plaintiff’s cotton from the Rio Grande to Monterey, at an expense of twelve or fifteen cents per pound, without compensation, and for the exclusive benefit of plaintiff. Under the contract proven by the plaintiff, if the defendant had determined to enter upon a contract for his own benefit, and had forwarded plaintiff’s cotton from Piedras Negras to Monterey, on his own 'account, he would have been entitled to all the benefits of the shipment, and the plaintiff would have been entitled to recover only the value of the same at Piedras Negras. But we think there is another construction of the contract — 624 — sued on, more consonant with all the evidence adduced on the trial, as well as the previous and subsequent acts of the parties, and which is the only legitimate construction of which the facts are susceptible. In his original petition the plaintiff alleges that defendant was to take the cotton to a Mexican market or to Liverpool, in England, and sell the same; thus clearly admitting that the defendant had the authority to exercise his discretion as to the market. This fact establishes beyond controversy either an agency or a partnership, and though that portion of the original petition was amended, and the description of the contract changed, yet the amended petition recognized the same discretion, the evidence establishes the same thing, and his recognition of appellant’s authority long subsequent to the shipment of the cotton, as proven by Mackey, should now estop him from denying the authority of defendant to act as he deemed advisable for both parties. And yet it is claimed by the plaintiff below that, though the defendant had discretion to ship or otherwise dispose of the cotton as he might think best, yet he was bound to do so at his own expense ; but we do not understand this to be a legal rule of partnership or agency, unless specifically proven. It was fully established by the evidence that the cost of getting cotton to Piedras Negras, at the time the contract sued on was made, was one-half of the same. It was also proven that defendant took the cotton to Piedras Negras under the contract, and there was no proof that he was bound to move it any further; and, under that contract, appellant can be held no further liable. At Piedras Negras the appellee and appellant became equal half owners in the cotton sent out, and whether the appellant thenceforward acted as the agent or equal partner in the cotton is quite immaterial now, as the appellee fully recognized and sanctioned his authority and his acts, and lie should have been held bound by the same. It clearly appears from the evidence that appellant used all diligence, care, and economy that could well have been exercised ; that his final adventure in the shipment of the cotton to — 625 — Hew York was made under the immediate advice of an old shipping merchant, and this act was fully approved and affirmed by the appellee, until the unfortunate news that the adventure had proven a great loss ; and we think he should now be held to bear his proportion of that loss. This view of the contract as alleged and proven, and the general merits of the cause, render it unnecessary that we should further notice specifically the various assignments of errors in the court below. But there is one view of this case which we do not feel at liberty to disregard, and especially as in our opinion it should have been decisive of the whole case. The first and second assignments are to the rulings of the court in overruling defendant’s demurrer and motion to dismiss. It is claimed by counsel that the contract set out in plaintiff’s original and amended petition was in fraud of the revenue laws and against the public policy of the United States; that it was made in aid of the late rebellion, and was therefore null and void. This contract was made in 1864, by and between citizens of the State of Texas, and though they-were residents within the limits of the so-called Confederate States, and may have been held to some extent excusable for recognizing that usurped authority, and for obeying for the time being the laws and regulations of that de facto government, yet they were by no means absolved from their allegiance to the government of the United States, nor their obligations to observe and obey its laws and regulations. In the case of White & Chiles (25 Texas Supplement), Chief Justice Chase, in delivering the opinion of the court, says: “ The ordinance of secession adopted by the convention, rati- “ fied by a majority of the citizens of Texas, and all acts of its “ Legislature intended to give effect to that ordinance, were ab- “ solutely null. * * * The obligation of the State, as a member of “ the Union, and of every citizen of the State as a citizen of “ the United States, remained perfect and unimpaired.” And if their obligations were unimpaired then they were legally — 626 — bound to obey all tbe laws and regulations which any other citizen of the United States was, and no citizen of the United States has ever been permitted to go into the courts for the enforcement of a contract made in violation of any of the laws of the country. When an illegal contract has been fully executed the courts will not interfere to litigate the claims of parties who may have been injured thereby, nor will they take jurisdiction to enforce an executory contract which is in any manner tainted with fraud or illegality. The contract sued on was made in 1864, to transport cotton from Texas to Mexico to market; and at that time there was levied by the laws of the United States a heavy duty on all cotton raised in this State, and by the same law a severe penalty was attached to the removal of said cotton from the place of production until the revenue dues had been paid. It is also historically known and may be judicially recognized as a fact, that at the time of making this contract all Federal revenue officers had been expelled from Texas and the Mexican borders, and the parties must have made the contract with a direct view of evading those revenue laws, as the law prohibited the removal of cotton until the duties were paid, and the contract was to remove when both parties knew the duties could not be paid. The dictum of the learned judge in Kottwitz v. Alexander (34 Texas, 689), that “ we know of no law that would be violated by taking cotton “ to Mexico in 1864,” was unnecessary to the decision of the case then before the court, and was probably made without a due consideration of the laws of the United States, and we are more inclined to adhere to the positive mandates -of the law, though we should disagree with that dictum. That there was no revenue officer to receive the tax was not the fault of the government, but the fault of the State and the citizens thereof, and the parties should not be heard to plead an excuse on that account. And if they entered into a contract to ship a quantity of cotton to Mexico, or to Liverpool, or Uew York, without paying the revenue idues, and they, with the rest of the citizens of the State, — 627 — had expelled the revenue officers from the State, so that the dues could not be collected, that contract must be held so tainted with illegality that the courts will not lend their aid to enforce the same or any part thereof. - Again, the public policy of the United States during the war, was to stop all commerce or trade by the rebel States or the citizens thereof with the outside world, to prevent all intercourse whatever—even with neutral governments—that all aid or comfort might be cut off, to the end that the rebel power might the sooner be put down and the citizens forced to their rightful allegiance. This was a policy the government had a right to inaugurate, and to put in force to any extent. The contract sued on was in direct conflict with this policy, and for that reason is entitled to no favorable consideration by the courts. That contracts against the law and public policy cannot be enforced is fully recognized in Cassell v. Hall, 7 Wallace, 543, and in Hanauer v. Doane, 12 Wallace, 342; Hunt’s heirs v. Hunt, 1 Texas, 758, Goodman v. McGehee, 31 Texas, 253, and Griswold v. Wadington, 16 Johnson, 438. Again, if this contract was made in aid of the then existing rebellion, it was null and void, and should uot now be enforced. This doctrine has been so often, and with so great unanimity announced by almost every court in the country, that we deem it unnecessary to refer to'but few authorities. In the case of Hanauer v. Doane, 12 Wallace, Justice Bradley, after a very thorough examination of authorities on that question, comes to the conclusion that “ he who, being bound by his allegiance to “ a government, sells goods to an agent of an armed combina- “ tion to overthrow that government, knowing that the pur- “ chaser buys them for that treasonable purpose,” or does any other act to aid that combination, “ is himself guilty of treason “ or misprision thereof.” The appellee in this case, knowing that the only resource for the Confederate army in obtaining clothing and supplies, consisted in the cotton of the country, and knowing also that very rigid exactions were laid upon all cotton in the State by the Confederate authorities, even to one628 half of the entire crop, and knowing also that no cotton could be got out of the country without satisfying those exactions in one way or the other, voluntarily purchased Bowles’s cotton for the purpose of sending the same out of the country to market, and then made a bargain with the appellant to pay the Confederate exactions, and procure what were known as permits for sending the same beyond the Confederate lines, and at the same time knowing that the whole transaction was in direct violation of the laws and public policy of the United States, can now hardly plead innocence, or an exemption from the legitimate consequence of his acts. He is to all intents and purposes as culpable as though his contract had been made directly with the Confederate authorities, in which he had bound himself to buy cotton and give one-half to the Confederacy for permits to ship the other half; and the one entered into was in direct aid of the rebellion, to a very large amount. It is entirely immaterial how appellant procured the permits from the Confederate agents, or whether the Confederacy was paid a part of the identical cotton turned over by appellee, or whether it was paid out of other cotton, or in money; yet the permits represented the interest of the Confederate authorities, and appellee agreed to give all that they represented; and that agreement was in aid of the rebellion, and therefore treasonable and void, and the courts cannot now be prostituted to take jurisdiction of or aid either party in the enforcement of the execution of the same. (Hanauer v. Doane, 12 Wallace; Goodman v. McGehee, 31 Texas, 254; Pridgeon v. Smith, 31 Texas, 171; Ransom v. Alexander, 31 Texas, 443; also, Emancipation cases, 31 Texas, 534.) We are, therefore, of the opinion that the original and amended petitions of appellee, filed in the court below, showed most clearly that the contract sued on was made in violation of the laws and public policy of the United States, and in aid of the rebellion, and was therefore treasonable and void; and that the District Court should have sustained the demurrer and dismissed the cause; and for the error in — 629 — refusing to do so, the judgment is reversed and the cause dismissed. Reversed and dismissed; Presiding Judge Evans dissented from the decision made of this case.