Ogden v. Barker

Spencer, Ch. J. delivered the opinion of the Court. The case of Palmer v. Lorillard, (16 Johns. Rep. 356.) decided in the Court of Errors, entirely disposes of the question, as to the plaintiff’s right to demand back the cargo, without the payment of freight, and the question does not arise, whether the plaintiff' ought-to have tendered full freight or less, because there has been no tender of any freight. The leading facts in this case are so entirely like those in Palmer v. Lorillard, that there is no distinguishing the two cases. It was there decided, that the blockade of the Chesapeake by the enemy’s squadron, did not dissolve the contract of affreightment, but merely suspended its ex^ ecution ; and that the ship owners had a right to retain the goods until they could prosecute'the voyage, or unless the plaintiff tendered the whole freight, to which the ship owners would have been entitled on the completion of the voyage, or unless the contract was rescinded by. mutual consent. To this decision we are bound to submit. But it has been insisted, that the voyage from Alexandria [93] to Cadiz, under a British license, was illegal, and that the defendants, therefore, had no right to retain the cargo, in order to prosecute such voyage, and ought to have delivered it to the plaintiff upon his demand. The parties entered into a charter-party, under hand and seal, on the 21st of January, 1813, by which the defendants, as owners of the ship Baltic Trader, agreed to hire, and let to freight to the plaintiff, the said ship, for a voyage from Alexandria to Cadiz, to transport a cargo of flour, which the plaintiff agreed to lade, and the defendants to transport at a freight of three dollars per barrel, and five per cent, primage, to be paid on delivery at Cadiz. A supplementary agreement was entered into between the parties, not under seal, stating, among other things, that the parties had that day executed a charter-party, and further agreeing, that the owners or freighters of the vessel were to furnish and put on board a Sidmouth license, for the protection of the ship and cargo. It is undoubtedly true, independently of the act of Congress of the 2d of August, 1813, that sailing under an enemy’s license, would render the voyage illegal, and the vessel and cargo confiscable. But the question is, whether the agreement to sail under an enemy’s license, being distinct, and independent of the charter-party, will attach upon that contract, and vitiate it. I am of the opinion, that the two contracts are severable; and that the last does not avoid the first. The contract of affreightment was full, complete, and perfect, under which the parties acquired reciprocal rights ; it was consummated by sealing and delivery. Then comes the agreement, that the ship shall sail under an enemy’s license, posterior in point of time, and by parol. It is admitted, that this agreement was void, because illegal. Why should it infect and destroy a contract legally made, and under which rights had been acquired ? It is in vain to say, that it was made on the same day with the charter-party, and is in pari ma-teria, It would be parcel of the contract, were it not wholly inefficacious. Utile per inutile non mtiatur. A vicious contract, which is, ipso facto, a nullity, cannot be incorporated with a prior lawful and valid one. If a valid contract should be made between A, and B., that 4. should [94] perform a journey ón BJs lawful business, ánd a subsequent one should be entered into on the same day, that on the journey, j1. should commit a crime, the latter contract would be void, but it would not dissolve the first, or exonerate the parties for their liabilities under it. In Hyslop v. Clark, (14 Johns.Rep. 465.) Mr. Justice Van Ness takes the distinction between a contract made void by statute, and a contract void at the common law. In the first case, when a bond is void in part, as against the positive provisions of a statute, the whole boad is void. In the latter case, the common law makes void only that part where the fault is, and preserves the rest. Here the contract was made void at the common law, for it was before the act of Congress; ánd if the distinction be sound, and I incline to think it is, if the two contracts were in the same instrument, the agreement relative to the license would be void, and the charter party would remain uncontaminated by it. I place my opi-. nion on the ground that the contracts were several, the one valid and the other void; and that the void agreement never attached to, or became parcel of, the contract of affreightment. - Judgment for the defendant.