Polly Favor vs. J. Philbrick, 7 N.H. 326

Richardson, C. J. delivered the opinion of the court. It is said in this case that there is a material variance between the allegations in the declaration, and the proof. The declaration sets out a contract to carry and deliver an account, while the evidence proves a contract to carry and deliver a letter containing an account. The question is, whether this is a material variance ?

It is.stated in the case that the defendant had notice, when the letter was delivered to him, that it contained an account, so that an agreement to carry the letter may well enough he considered as a contract to carry the letter and the account. And the rule of law is, that in stating the consideration of a contract, the whole must be stated truly ; and if more or less than is proved is stated in the declaration, the variance is fatal.

But in stating the promise, it is sufficient to state those parts only for the breach of which the action is brought, provided the parts omitted do not vary or qualify the parts stated. 1 Chitty’s Pl. 299—300; 8 East 7, Miles vs. Sheward; 6 East 564, Clarke vs. Gray; 3 Stark. Ev. 1564; 8 Cowen 36; 1 Saund. 233, note (2.) This action is brought on the contract to deliver the account ; and the circumstance that the account was sent in a letter is wholly immaterial. It neither varies nor in any way qualifies the contract to carry the account. The cases cited to sustain this point in the defence do not apply.

In Harrison vs. Wilson, 2 Espin. 107, the agreement on the part of the plaintiff to take in a full cargo must have been the consideration of the promise on which the action was founded. That case is, then, in perfect accordance with the rules above stated. In Symonds vs. Carr, 1 Campbell 361, the variance was in the contract stated as the consideration of the promise. In Penny vs. Porter, 2 East 2, the action was case for the non-delivery of wheat according to agreement. The contract stated in the declaration was that the defendant should deliver forty bags immediately.

The contract proved was that he should deliver forty or fifty bags immediately. The contract stated was not, therefore, proved. In Clarke vs. Marstone, 5 Esp. 238, the objection was, that the contract stated was not proved. There ⅛ nothing in any of these cases at all inconsistent, with the rale that in stating the promise it is sufficient to state those parts only for the breach of which the action is brought, ■ • - - . . It has been said in the argument, that the delivery of the account without the letter would have answered no purpose. This may be true.

But it must be recollected, that as the. account was not delivered, the non-delivery of the letter became of no importance. The plaintiff may then well consider the non-delivery of the account as the cause of all the damages she has sustained. It is further said, in this ease, that the jury were misdirected in this, — that they were told that to constitute a de-fence, it must, be shown with great certainty, that the account had been paid, or that nothing was due. But what right had this defendant to try that question at all ?

He had contracted and received a compensation to carry and deliver the account to Rogers. What concern has he with the question whether any thing was due on the account ? Gould he. by a violation of his own contract compel the plaintiff to try with him the question whether any thing was due on the account ? It is very strange if he can. The only mistake that is perceived in this part of the charge to the jury is, that it should have been left to the jury to say whether any thing was due oh the account.

It is further said, in this case, that the defendant was a mere bailée for hire, which bound him to respond only in case of failure to perform his contract through his want of ordinary care ; and that the direction to the jury that he was. bound to perform his contract as in other cases, was erroneous, as it placed him on the ground of a common carrier, and overlooked the distinction between a common carrier and a bailee for hire. It may be conceded that the defendant was a mere hired servant in the transaction, and not a common carrier.

But how the direction to the jury, which has been just mentioned, can be supposed to have placed him on the ground of a common carrier, is not perceived. livery man is bound to perform his contract. A mere hired servant is as much bound to perform his contract as a common carrier. But the contract he makes may be very different. A common carrier not only contracts to carry the goods, but to insure their safe delivery, unless in cases of inevitable accident. A hired servant only contracts to carian He is no insurer. He only stipulates to use ordinary care and diligence.

The difference is in the contract itself, and not in the obligation to perform what is agreed to be done. Common carriers and bailees for hire are in these cases equally bound to perform their contracts. When the plaintiff had shown that the defendant took the account, under the agreement to deliver it to Rogers, and that it had never been delivered, this was enough, prima facie, to sustain the action. If there was any legal excuse for the non-performance of the contract, that was matter of defence. The plaintiff was not bound to -show any other negligence, to sustain the action.

And until some excuse was offered by the defendant, it was wholly immaterial whether the defendant was to be considered as a common carrier, or the mere hired servant of the plaintiff in the transaction. If the contract was broken, the plaintiff was entitled to recover his damages, whether the defendant was the insurer of the safe delivery of the account or not. He had contracted to carry the letter for hire, and had not performed what he had undertaken to do. No question seems to have arisen as to the extent of his responsibility, whether it was that of a common carrier or that of a hired servant.

It does not appear in the case stated that the defendant offered any excuse whatever for the non-performance of the contract. But the case states that it was contended by the defendant’s counsel, that in small errands, undertaken for .a small compensation, the party cannot be charged for negligence, but is only liable.in case of his dishonesty. And it is to be inferred, from the manner in which the case is stated, that the ground taken by counsel was that the defendant was not liable, because there, was no evidence of dishonesty.

In answer to this ground of defence, the judge who tried the cause seems to have told the . jury that in a case of this kind the defendant was bound to perform his contract, as in any other case of a contract. This did not place the defendant on. the ground of a common carrier, who. is liable at all events. It only, placed him on the ground on which every man who. makes a contract is placed. It . was only saying to the jury, that as. the defendant had contracted to carry the letter for hire, and had failed to perform his contract, he must be held liable unless he could show some legal excuse.

It 'was only applying to the case the general rule. And we are not aware of any .solid ground oil which this case can be held to form an exception to the general rule. No case has been cited, in Which such an exception has ever been recognized, This was the case of a small errand undertaken for a small .rew.ard, it is true — but it was a - contract, which, if legal, .the defendant was bound to perform — a contract that could not be wantonly broken without a violation of truth, probity, and. justice — in fact, without dishonesty. .

We are, therefore,, of opinion that the direction given to the jury was right. ; ' . . But it. is further insisted, that the contract was illegal,— .the defendant being a mail-carrier, and having no right to carry an account in the manner this account wás sent. It is said that -the statute of the United States prohibited the contract which was made between these parties. But it seems to me, that upon a-fair construction of the 1.6th, 17th, and 18th sections of the statute, a mail-carrier was. not'prohibited from carrying á letter, relating.to a package sent by. him.

And any letter sent with a package is presumed to relate to the package, until, the contrary appears. 1 Pickering 50, Dwight vs. Brewster; 1 B. & A. 461, Bennett vs. Clough. And however that may be, we are all of opinion that the contract in this case was.not, under the circumstances, void. A promise founded upon an illegal consideration, is void. But in this case the consideration was legal. And in general a contract to do an illegal act, although founded on a lawful consideration, is void. And the objection to the contract in this case is, that it was a contract to do an unlawful act. The 17th

section of the statute regulating the post-office establishment, makes it the duty of the post-riders to receive way-letters, (if presented more than two miles from a post-office) and to deliver them, together with the postage, if paid, at the first post-office at which they shall arrive. And the 18th

section enacts, that if any person concerned in carrying the mail of the United States shall collect, receive, or carry any letter or packet, or shall cause, or procure the same to be done, contrary to this act, every such offender shall forfeit and pay for every such offence a sum not exceeding fifty dollars. It is very clear, that under these provisions the delivery of the letter and account to Philbrick by Jones was lawful, and that it was the duty of Philbrick to receive them.

The stipulation that Philbrick should see the letter and account delivered to Rogers, was not illegal, and might have been lawfully executed by putting them into the first post-office at which the defendant arrived, and taking them out and delivering them at Henniker. This might have been lawfully done, if the defendant could not lawfully deliver them without putting them into the post-office. It is manifest that Jones supposed that the letter might be lawfully carried by the defendant directly to Rogers, It was left open, in order that it might be so carried lawfully.

There is no reason to suppose that any fraud upon the post-office establishment was intended. It is certainly possible, that the arrangement between Jones and Philbriek was made with an intent to defraud the post-office. But what is the presumption in this case ? It is manifest that one object which Jones had in view was to place the account in the hands of Rogers more speedily and more certainly than it rvas likely to reach him through the medium of the post-office. This object itself was certainly lawful. And the circumstances of the case render it highly probable that it was the true and only motive.

In point of law, then, the case stands clear of all ground to impute a fraudulent intention. Fraud is never to be presumed. And “odiosa et inhonesta non sunt in lege prassumenda et ‘ in -facto quod in se habet et bonum et malum magis de 1 bono quam de malo praesumendum est.” 10 Coke, 56. Bad motives are never to be imputed to any man, where fair and honest intentions are sufficient to account for his conduct. It is, on the whole, rather probable, perhaps, that the post-office lost nothing by the agreement between Philbriek and Jones.

It is evident that Jones was anxious to have the account in the hands of Rogers in season to commence a suit upon it before the action was barred by the statute of limitations. It might be quite uncertain, whether the account would have reached Rogers in season through the post-office. If any accident detained the letter in the post-office at Henniker, the debt might be lost. It is not unlikely therefore that if Philbriek had refused to see the letter delivered, Jones might have concluded to send a special messenger instead of sending the letter by the mail. And if so, the post-office lost nothing.

The head and front of Jones’ offending is, that supposing it lawful for Philbriek to carry the letter directly to Rogers, he delivered it to him to be so carried, and paid him accordingly. If this was unlawful, both Jones and Philbriek most manifestly acted under a mistake as to the meaning of the provisions in the statute, — a mistake which has strong claims to be considered as innocent, since it is: one into which one of the ablest courts in the Union has fallen, after a most careful and deliberate examination of the subject. 1 Pickering, 50.

And in a case like this, where the provision in the statute which is supposed to have been violated is a mere post-office regulation, it would be very severe to hold the contract void for such a mistake by the plaintiff’s agent, in favor of the defendant, whose duty it was to know the true meaning of the laws under which he acted. The case stands, in our opinion, entirely free from all suspicion of intended fraud upon the post-office establishment in any one.

And we think, that although the contract was to be performed according to the understanding of both Jones and Philbrick in a manner not allowed by the statute, still it was not void. The mode in which the contract was to be performed was not of the essence of the contract. If Philbrick had seen the letter delivered, by putting it into the post-office at which he first arrived, and taking it out at Henniker, the contract would have been substantially performed.

And if in such case the post-master at Henniker had refused to let Philbrick have the letter to deliver to Rogers, it would in our opinion have been enough, if Phil-brick had given notice to Rogers that there was a letter in the post-office, requiring his immediate attention. It is contended by counsel that this would not have accomplished the object of the contract, because the expense of postage would have been incurred.

But this argument is built upon the assumption that to save postage was the object of the contract; — an assumption in conflict, as has been before stated, with the legal presumption arising upon the circumstances of the case. There is no reason to suppose that there was any other object in view than an immediate delivery of the letter and account to Rogers, so that a suit might be brought on the account in season. And this circumstance is entitled to great weight. If a man command his servant, to. do

an act which. the servant knows to be a trespass, and promises to indemnify him, the promise is illegal and void. But if in such case the servant is ignorant that the act is a trespass, the promise is valid. 17 Johns. 142, Coventry vs. Barton; 4 Cowen, 340. There, is a recognized distinction between provisions in statutes having for their object the protection of the public, and provisions which are mere revenue regulations.. Where the'protection of the public is the object of the provisions, a contract made in violation of them is always void. 3 B. & A. 179, Cannon vs. Bryce; 5 B. & A. 335, Binley vs.

Bignold; 11 East 300: 17 Mass. R. 258. But when the - provision is a mere revenue regulation, protected by a penalty, to render a contract in violation of it void, actual fraud must appear. Thus in Johnson vs. Hudson, 11 East 180, although the statute provided that every person who should deal in tobacco should, before he dealt therein, take out a license, which was to be renewed annually under a penalty of fifty pounds, yet it was held that where a person sold tobacco without a license, there being no fraud upon the revenue, the contract was not void, and that he might recover the price.

The same principle was adopted in Brown and a. vs. Duncan, 10 B. & B. 93. - It is clear that the contract must be considered as void if made with an intent to defraud the United States. But in a case like this, where no fraud can be supposed to have been intended, it is enough to hold that the post-rider, whose duty it was to understand the true meaning of the law under which he was acting, was subjected to a penalty without holding that his contract with the party who sent the letter was void.

My own opinion is, that the construction which these parties put upon the statute, was the true one : and I have no doubt that such was the general understanding of the community. Of course I am of opinion, that no penalty was incurred by the defendant.

But however this may be, we are all of us of opinion that as the defendant undertook to see the letter delivered to Rogers,, as this might have been lawfully done, whatever, may. be the- true meaning Of the statute, and as. there is no , reason to . suspect that any fraud was intended by either party,-the defendant was bound to. execute the contract and see the.letter delivered, and that he is liable for the breach of. his contract. Judgment on the verdict.