
    Bier & Mann v. Dozier.
    November Term. 1873,
    Richmond.
    Bouldin, J., Absent.
    
    1. Confederate States Government — United States Laws.—During' the war neither the law of the United States, nor any policy of their government, was in force in any part of the Confederate States, not in the possession or under the control of the United States.
    2. Same—Agents of—Contracts by.-On the 1st of February 1865 B. representing himself to be the agent of the Confederate States government, to take tobacco into Maryland and exchange it for bacon, applied to D, living near the Potomac river in W. county, to store for him in D’s barn for the night, 84 boxes of tobacco. D being unwilling to do it, B agreed with him that if he would receive the tobacco *in his barn, and should sustain any damage or injury from the forces of the United States in consequence of the tobacco being there deposited. B would make good all losses he might sustain thereby. Under this agreement t the tobacco was deposited in D’s barn, where it remained until the 17th of March, B undertaking to pay for any loss B might sustain thereby. At that time the enemy's gun-boats on the river approaching D’s house, he removed and concealed the tobacco, and his houses and out-buildings and furniture were destroyed by the enemy: his loss amounting to 86,333. HUID:
    1. Same—Same—Same.—B being the agent of the Confederate Government, which could enforce obedience upon all within its jurisdiction, the contract was valid, and B is bound to pay D for the loss which he sustained.
    2. Same—Same—Same—False Representation.—If B was not the agent of the Confederate government. and was prosecuting a private enterprise, against the laws and policy of that government, D is not particevs cj’imims with B, in an equal degree, if at all, and he is entitled to recover.
    3. Contracts —Against Public Policy.—To make a contract unlawful as being against public policy or law, it must be manifestly and directly so; and it is not enough that the contract is connected with some violation of the law, however remotely or indirectly.
    This is a writ of error to a judgment of the late District court held at Fredericksburg, affirming a judgment of the Circuit court of Essex county, rendered in favor of the defendant in error, the plaintiff in the said Circuit court, William R. Dozier, against the plaintiffs in error, the defendants in the said Circuit court, B. Bier and S. Mann, who, with Samuel Strooke and B. Bowman composed a partnership firm, trading in the name and style of S. Strooke & Co. The action was in assumpsit. The declaration contained two counts, and was in substance as follows: The first count stated that the defendants, on the first day of February 1865, at the county of Westmoreland, in consideration that the plaintiff, at the special instance and request of the defendants, *would receive on storage upon his premises, to wit: in his barn, and take care of a large lot of tobacco, the property of the defendants, for their use and at their risk, for a short time, to wit: for the space of forty-eight hours, undertook and promised that they, the defendants, would make good to the plaintiff, and pay him for all loss and damage done to him or to his property by the army of the United States, or any person or persons in the employment of the United States, by reason of said tobacco having been stored upon the said premises, it having been admitted by the defendants that the said tobacco was intended to be transported from said premises into the State of Maryland, and that such transportation was forbidden by the government of the United States: That the plaintiff, confiding in said promise and undertaking of the defendants, did then and there receive on storage upon his premises, to wit, in his barn, the said tobacco, and did take care of the same, and after-wards safely deliver it to the defendants: That the defendants did not regard their said promise and undertaking, but deceived the plaintiff in this, to wit: that the said tobacco was permitted to remain upon the premises for a long space of time, to wit: for the space of three months, and until the officers and men on the United States gunboats and vessels of war on the Potomac river had been informed of the fact that said tobacco was so stored upon the premises of the plaintiff; and coming in search of the same upon said premises, and failing to find it, by reason of the care and attention of the plaintiff in concealing it, they, the said officers and men, did great damage to the property of the plaintiff, by burning his dwelling house, furniture, stable, grain and other property in and upon the said premises, whereby he was put to great expense and loss, &c., in the whole amounting to a large sum of *money, to wit: to the sum of $6,352. The second count stated that on, &c., at, &c., in consideration that the plaintiff, at the like special instance, &c., would receive into his possession, upon his premises, in said county of Westmoreland, a large and very valuable lot of tobacco, the property of the defendants, which they were attempting to carry to Maryland for sale, they, the defendants, undertook and promised the plaintiff that they would pay to him any damage or loss sustained byt him at the hands of the United States forces, by reason of said tobacco being put into the possession and upon the premises of the plaintiff by the defendants: That the plaintiff did so receive said tobacco into his possession and upon his premises, upon the conditions aforesaid; and that the United States forces did, having sought for said tobacco and failing to find it, burn and destroy the houses, furniture and other property of the plaintiff, of great value, to wit: of the value of $6,352; of which the defendants afterwards, to wit: on the 10th day of May 1865, at, &c., were duly informed : And that the defendants failed and refused to pay the loss and damage sustained by the burning and destruction aforesaid. Wherefore, the plaintiff said that he was injured and has sustained damage to the amount of $-. There was, at the conclusion of both counts, a statement apparently applicable to each: that after-wards, to wit: on the 10th day of May, 1865, in consideration of the premises respectively, the defendants promised to pay the said several sums of money, on request, to the plaintiff; yet they had not paid the same, or any part thereof, “to the plaintiff’s damage $12,000; and thereupon he brings suit, &c. ”
    The defendants filed a general demurrer to the declaration, and .the plaintiff joined in the demurrer; which, upon argument, was overruled. And then the defendants *plead not guilty to the first count, non-assumpsit to the second, and filed a special plea that they were not partners, as alleged in the declaration. To all these pleas the plaintiff replied generally ; and issues being thus joined by the parties, were tried by a jury, which found a verdict for the plaintiff on all the issues, and assessed his damages at $5,937, with interest thereon from the 17th day of March 1865 till paid; and judgment was rendered accordingly.
    Two bills of exceptions taken by the defendants to opinions given by the Circuit court during the trial of the cause, were made a part of the record. The first states that after all the evidence had been given •to the jury, the counsel for the defendants moved the court to instruct the jury as follows—that is to say: that if the jury believe, from the evidence, that the contract between the plaintiff and defendants, stated in the declaration, was made for or about any matter or thing which was, at the time, prohibited and made unlawful by any law of the United States, or in violation of the policy of the United States government, then said contract is void, and they must find for the defendants. But the court refused to give the said instruction; and the defendants excepted. *
    The second bill of exceptions states, in substance, as follows: that after the jury were sworn to try the issues joined, the plaintiff, (who testified for himself,) to maintain the said issues on his part, proved the following facts, to wit: that i'n the latter part of January, or the first of February 1865, two men, representing themselves by the names of Strooke and Bier, came to the home of the plaintiff, situate near the Potomac river, in the county of Westmoreland, near night, and requested of the plaintiff permission to deposit in his barn, until the next morning, a large quantity (about 82 boxes) of tobacco; *which deposit he declined to allow. They then represented to him that they were taking the said tobacco to Maryland, to be exchanged for bacon for the Confederate States, government; and that they had full authority to take the said tobacco to Maryland. The plaintiff then consented to receive the said tobacco until the next day. The said Strooke and Bier then agreed with the plaintiff, that if he would receive said tobacco- in his barn, and he should sustain any damage or injury from the forces of the United States, in consequence of the said tobacco being there deposited, they would make good all losses which he might sustain. They were wealthy, and good for any agreement they might make. The weather was very cold, and the river and creek were blocked up with ice. Said Strooke remained at the house of the plaintiff three weeks. While there the plaintiff frequently manifested his uneasiness about the tobacco being on his premises, and was told by said Strooke that if ever he was injured thereby, he would pay all losses which he might sustain. The said tobacco remained in the barn of the plaintiff, on storage, till the 17th of March, 1865, when the . Potomac flotilla, under Commodore Parker, made its appearance and began to shell the premises of the plaintiff. The plaintiff, with such assistance as he could get, removed the said tobacco to the woods, and concealed the same; and it not being found by the forces of Commodore Parker, the said forces of the United States government burned the dwelling house, the barn, stable and all the houses of the plaintiff, except the overseer’s house, all the furniture, except their beds, the agricultural implements, and one year’s provisions. The loss of the plaintiff, in consequence of said burning, was not less than $6,352. Between the time of the deposit of the tobacco and its removal, he had interviews with the partners, Strooke, Boreman, Bier and Mann, each of *whom acknowledged himself a member and partner of the firm of Strooke & Co., and all promised him indemnity for any loss he might sustain. After the -burning, Bier and Mann came to his house and renewed the promise to reimburse him for his loss. Mann stated that Strooke proposed to send plainti ff $S, 000 by him, but feared, from the unsettled state of the country, it might be lost. On the 27th of May 1865, Bier and Mann came to the house of the plaintiff with what purported to be an order from the Secretary of the Treasury of the United States, endorsed by the President, for the delivery of the tobacco to them; and upon consultation with his friends, he determined to give up the tobacco, though he had previously determined to hold on to it until paid for the loss he had sustained. On motion of the defendant’s counsel, the evidence touching the said order was excluded from the jury, unless the order was produced. All the tobacco, except three boxes, which plaintiff had used, and two boxes of damaged tobacco, and a half box of sound tobacco given to the plaintiff by the defendants, was delivered to Bier and Mann.
    Dr. Harvey also proved substantially the same facts as above. Another witness also proved that Strooke and Bier came to his house, and in conversation with the daughter of the plaintiff, who was staying there, concerning the loss of her father’s property, Strooke told her not to be sad, he would build her father a better house than the one he had lost, and fully reimburse to him the loss he had sustained.
    On the cross examination of the plaintiff’s witnesses, it was further proved, that the plaintiff resided near the Potomac river, and was in the habit of entertaining at his house refugees from Maryland and Virginia; that a signal corps of the Confederate States was stationed during the war in one and a half miles from the plaintiff’s *house, and the members of said corps were frequently at his house; that some of Col. Mosby’s men had been there on one occasion; and the blockade runners had stopped at the plaintiff’s house some times, though the plaintiff had not been engaged in the blockade business; that when Strooke and Bier came to the house of the plaintiff with the tobacco, they exhibited to him and a friend stopping with him, Dr. Harvey, a paper writing from an officer of the Confederate States, approved by the Secretary of War of the Confederate States, giving Strooke & Co. full authority to carry tobacco into Maryland, to exchange for bacon for the use of the Confederate States, which paper showed that Strooke & Co. had given bond to the Confederate States before the said payer was furnished to them; and Strooke stated the bond was for $100,000 or more. And these were all the facts proved in the cause. Thereupon, the defendants moved the court to give the following instructions to the jury:
    1. If the jury shall believe from the evidence that the consideration of the contract set forth in the declaration was in violation of any statute of the Confederate government, or in violation of jits policy, then said contract is void, and they must find for the defendants.
    2. If the jury shall believe that said contract was for an illegal transaction, then said contract is void, and they must find for the defendants.
    3. If the jury believe from the evidence that the consideration of said contract is altogether illegal, it is insufficient to sustain a promise, and the agreement is wholly void, whether the law violated be the common law or statute.
    4. If the jury believe from the evidence that the said contract was made for or about any matter or thing which was at the time prohibited and made unlawfully by *'any law of the United States, or in violation of the policy of the United States government, then said contract is void, and they must find for the defendants.
    5. Unless the jury shall believe from the evidence that the property of the plaintiff was burned and destroyed by the forces or troops of the United States government, because the tobacco of the defendants had been stored in the houses of the plaintiff, they must find for the defendants.
    6. If the jury find for the plaintiff, then they must deduct from the amount they shall find such an amount as shall be the value of the tobacco used by him.
    All of which instructions the court gave, except the one marked 4; which the court refused to give.
    And the plaintiff moved the court to give the following instruction; which the court gave:
    If the jury shall believe from the evidence that S. Strooke & Co. did deposit on storage with the plaintiff tobacco which they had authority from the Secretary of War of the Confederate States to take into Maryland, to exchange for bacon for the Confederate States government, and promised to pay all damage done to the property of the plaintiff by the United States forces, by reason of the said tobacco being so stored, and that the said property was destroyed by the United States forces, and that after its destruction the said Strooke & Co. assumed to pay such damage as the plaintiff had sustained thereby, then they should find for the plaintiff.
    Thereupon, the jury found a verdict for the plaintiff, as aforesaid; and the defendants moved the court to set aside said verdict and grant them a new trial, upon the ground that said verdict was contrary to law and evidence; which motion the court overruled, and gave judgment for the plaintiff, upon said verdict; and the ^defendants excepted to the opinion of the court overruling said motion.
    The case was argued by Crump, for the appellants. There was no counsel for the appellee.
    
      
      The case was argued before his election.
    
    
      
      Contracts by Confederate Government.—Tee principal case is cited as authority on this subject in Dinwiddie v. Stuart, 28 Gratt. 554, 580.
    
   Moncure, P.,

after stating the case, proceeded :

Pirst—Did the Circuit court err in refusing to give the instruction asked for by the defendants, as mentioned in their first bill of exceptions?

This instruction was asked for after all the evidence had been given to the jury. All the facts proved by the evidence are certified by the court in the second bill of exceptions; and though none of the evidence or facts proved are set out in the first bill of exceptions, I will consider the question as to the propriety of giving the instruction therein mentioned in reference to the facts of the case, as certified in the second bill of exceptions. So considering it, the question was not an abstract one, and could not, properly, have been refused on the ground that it was. Then, was it proper to refuse it on any other ground?

During the war, neither the law of the United States, nor any policy of their government, was in force in any part of the Confederate States not in the possession or under the control of the United States. That law and that policy, in contemplation of law, are presumed to have been, and actually may have been, unknown to the citizens of the Confederate States, who were alien enemies to the citizens of the United States, between whom all intercourse, social, commercial or otherwise, was interdicted by the laws of both countries and the law of nations ; and the interdiction was enforced by the armies of both countries. The law and the policy of the Confederate States were binding on the citizens thereof, and the obligation was enforced by the power of those ^States, which was perfectly irresistible by the citizens thereof, however much they may have been disposed to make such resistance. The power of the United States was wholly insufficient to enable such citizens to make such resistance, or to afford them any protection against the consequences of making it. According to the facts as certified, the defendants were agents of the Confederate government, to exchange tobacco with the enemy for bacon, one of the prime necessaries of life, which could not be otherwise procured; and it cannot be supposed that all the power of that government would not, if necessary, have been exerted to compel its citizens to afford all the facilities in their power to the only operation by which bacon could be procured for the use of the government, in that part of the country in which the plaintiff resided, during that period of the war in which the transaction in controversy occurred. So that, if it was not the patriotic duty pf the plaintiff, as a good' citizen of the government under which he lived, and which alone afforded him protection, to render any facilities he may possibly have renderted to the defendants, in regard to that transaction, he was, in contemplation of law, under the necessity of doing so. The law on this subject is so fully and clearly laid down by Judge Staples, in his opinion in the case of Newton’s ex’or v. Bushong & al., 22 Gratt. 628, that it is only necessary here to refer to that case.

I will now proceed to consider the next question, which is:

Secondly—Did the Circuit court err in overruling the motion of the defendants to set aside the verdict and grant them a new trial, upon the ground that the said verdict was contrary to law and evidence, as mentioned in their second bill of exceptions.

Now, the facts proved, which are certified by the *court and repeated in the statement of the case, fully sustain the contract, as set out in the declaration; and moreover show, what is not there set out, that the defendants were acting, as represented to the plaintiff that they were acting, as agents of the Confederate States government, and exhibited to him the written authority under which they professed to be acting. They also show, or strongly tend to show, that the plaintiff fully complied with the contract on his part; that he received the tobacco in his barn and took good care of it; that in consequence of the tobacco being there deposited his property was burned by the forces of the United States, whereby he sustained damage to the amount of $6,352, of which the defendants had due notice, and which they were requested to pay, but wholly failed and refused to pay to the plaintiff.

That the plaintiff’s property was burned in consequence of the tobacco having been deposited in his barn, was expressly found by the jury, who were instructed by the court, on the motion of the defendants, that “unless they should believe from the evidence that the property of the plaintiff was burned and destroyed by the forces or troops of the United States government, because the tobacco of the defendants had been stored in the houses of the plaintiff, then they must find for the defendants.” On the contrary, they found for the plaintiff; and the evidence well warranted them in so finding. It is more reasonable to believe that the property was burned because the tobacco had been deposited in the barn, than that it was burned because the plaintiff, who resided near the river, had been in the habit of entertaining at his house refugees from Maryland and Virginia, or because the members of a signal corps of the Confederate States, stationed near his house, had frequently been at his house; or because some of Mosby’s men had been there *on- one occasion. Such hospitalities were universally practiced by our citizens residing near the river; and if the property of every man who practiced them had been destroyed, there would have been a general destruction of all the buildings in that locality. The plaintiff had not himself been engaged in the blockade business. There is not sufficient reason for believing that the property would not have been burned, if the tobacco had not been removed and concealed by the plaintiff. The plaintiff, if he was not bound as bailee, had certainly a right to try to save the defendant’s tobacco; and if the effect of his effort has been to save the tobacco, but to lose his own property, the defence that he was not bound by his contract to try to save the tobacco by removing and concealing it, comes with a very ill grace from the defendants. If he had not removed the tobacco, it would certainly have been lost by the defendants; and probably the plaintiff’s property would still have been burned; the loss of which would also have fallen on the defendants by the very terms of the contract. The plaintiff, by his act of removing the tobacco, at least saved them from one of these losses. But it was for the jury to decide the question of fact, upon the evidence ; and they did expressly decide that the burning was in consequence of the tobacco having been stored in the houses of the plaintiff.

Then, the case of the plaintiff is fully made out by the facts proved. In other words, the verdict is clearly not against evidence. Is it against law? Is there any thing in the facts proved, which shows that the plaintiff is not legally entitled to recover?

I have already shown that, considering the defendants, as agents of the Confederate States government, in exchanging tobacco for bacon for the use of that government, the plaintiff might lawfully have contracted with xthem to receive the tobacco in his barn, even though he might thereby facilitate the operation by which that exchange was sought to be effected. And the defendants must be so considered in this case, whether they were in fact so or not; because they so represented themselves to the plaintiff, and are estopped from denying that they were such agents. Indeed they do not now deny the fact, or attempt to deny it. I deem it unnecessary to say any thing further on that subject.

But, suppose the defendants were not the agents of the Confederate States government, to exchange tobacco for bacon, and that they were engaged in an unlawful act on their own account, in carrying or attempting to carry tobacco to Maryland, to exchange it for bacon: Is there any thing in the act of the plaintiff, in receiving the tobacco in his barn, which makes the contract of the defendants, for whose benefit the act was done, unlawful, and enables them to get rid of their promise to indemnify him against loss arising from that act? Did he thereby become a particeps criminis in the supposed unlawful act? And does the maxim ex turpi causa non oritur actio apply to his case? I think not. He was not at all engaged in any act of running the blockade, in which the defendants may have been engaged. On the contrary, it is expressly certified as a fact proved in the cause, “that the plaintiff had not been engaged in the blockade business;” and of course was not engaged in the blockade business, if that was its nature. He was to derive no benefit from it. He knew nothing of it, until the defendants presented themselves at his house, near night, and requested him to permit them to deposit the tobacco, for the night, in his barn; which he refused to do, until he was assured that they were armed with the authority of the Confederate government to do the act in which they were engaged; and not then, until they ^'promised to indemnify him against all loss. He knew that whether he was in fact concerned in blockade running or not, he would be suspected of being guilty by the enemy, if the tobacco was found by them on his premises ; and therefore he properly stipulated with the defendants for his indemnity by them. He afterwards removed and concealed the tobacco, both for his own benefit and that of the defendants, and especially of the defendants, who were bound for his indemnity. He hoped thereby to have saved the property of both. He did save that of the defendants, but lost his own. He did not contract to conceal the tobacco, but merely to afford it shelter and house room; which were necessary, whether the tobacco was to be used in a lawful or an unlawful purpose. It was no part of the process of “running the blockade;” of carrying the tobacco into Maryland. The defendants arrived near night at the plaintiff’s house, near the river. The river was then blocked up with, ice; and the defendants wanted accommodation and shelter for themselves and their tobacco; and the plaintiff reluctantly, on account of the danger of doing so, afforded them the hospitality which they needed, on their promise to indemnify him against loss. Did he thereby make himself a particeps criminis?—commit an act of turpitude, from which no action can arise, even against the defendants, at whose instance and for whose benefit the act was done? If there be any, the least, guilt on his part, is not their guilt infinitely greater, and would they not, even on that ground, be liable to the plaintiff? The plaintiff did not expect any favors from the forces of the United States, if they found the tobacco in his barn; but he did expect, and had a right to expect, that the defendants would stand up to their bargain. What is it to the government—how 'can it be against the policy of the law, if the defendants be compelled *to comply with their contract? Suppose the plaintiff had given a meal of victuals, or a night’s lodging, to these supposed blockade runners, would that have made him a particeps criminis? He not only did that, but he afforded them shelter and a place of deposit for their tobacco which they had along with them. Did that any more make him a particeps criminis? Must he, of necessity, permit their tobacco to remain exposed to the weather, and be thus destroyed? We must bear in mind that there is no evidence tending to show that there was any purpose of concealment of the tobacco in view of the parties, or any other purpose than that of affording temporary shelter to the defendants' and their tobacco, during the night, or until they could carry it away. We know very well, that to make a contract unlawful, as being against law or public policy, “it must be manifestly and directly so; and it is not enough that the contract is connected with some violation of the law, however remotely or indirectly.” Bet it be remembered that this is not a controversy between a citizen of the Confederate States and a citizen of the United States; nor between a citizen of the Confederate States and the government, either of the Confederate States or United States; but between citizens of the Confederate States inter se; and that the effort of the defendants is, to get rid of the obligation of their express promise, of which they have received the full benefit, upon the ground that it was contrary to the policy of a law of which they have been the chief, if not the only violators.

I am, therefore, of opinion that the verdict is not against law, any more than it is against evidence; and that the Circuit court did not err in overruling the motion of the defendants to set it aside.

The court gave to the jury an instruction, on the motion of the plaintiff, which is embodied in the defendants’ *second bill of exceptions. But that exception was taken only to the opinion of the court overruling the motion of the defendants for a new trial, and not to the opinion of the court in giving that instruction. There was no exception to that instruction; and therefore it cannot be objected to, for the first time, in the appellate court. But, in fact, it is not liable to any well founded objection. It presents a case which made the defendants liable, according to what has been already said. That it proceeds further to state that the defendants, after becoming so liable, assumed to pay such damage as the plaintiff had sustained by the destruction of his property, can do no harm, if it does no good. The next and last question, is:

Thirdly—Did the Circuit court err, in overruling the demurrer to the declaration?

This question would seem properly to be the first which should have been considered in regular order, but I thought it more convenient to consider it lastly. The declaration contains two counts, which seem not materially to vary from each other. The demurrer is general to the whole declaration, and not to each count; so that, if either be sufficient, the demurrer was properly overruled. I think both are sufficient. The declaration says nothing about the authority of the defendants, as agents of the Confederate States, to exchange tobacco for bacon ; and therefore it presents the question, whether the contract, without reference to that fact, was legal; and upon that question I have already fully expressed my opinion, that there was nothing in the contract, as stated in the declaration, which made it illegal or void. As to the addendum to the declaration, concerning which the learned counsel for the defendants seemed to be at a loss whether it was intended by the pleader to be a separate count, or what else —I do not consider it as a separate *count, nor that it was intended to be such. It is not accurately drawn, though it may have been intended as a common breach to the two counts; and may well serve as a breach to the first count, which, otherwise, seems to be without a breach. The second count has a breach, and is a perfect count. At all events, the addendum does no harm.

Upon the whole, I think there is no error in the judgment, and that it ought to be affirmed.

The other judges concurred in the opinion of Moncure, P.

Judge Bouldin did not sit in the case; he not having been on the Bench when it was argued; but he said, he concurred in the first proposition considered by Judge Mon-cure.

Judgment affirmed.  