"We understand the decision in Gregg v. Wyman, to be put, in the first place, upon the ground that the claim of the plaintiff, though in form for a tort, was in substance to recover damages for the breach of the illegal contract. This position does not appear to be very confidently maintained, and would seem to be entirely inconsistent with the case of Homer v. Thwing, 3 Pick. 492, decided in the same court. If the cases are to be regarded as in conflict, we prefer the rule of Homer v. Thwing.
"The other ground is that the plaintiff could not prove his case without showing the illegal contract by which the horse went into the defendant's hands; that he could not show the conversion of the horse by driving beyond the place for which he was hired, without showing the terms of the illegal contract; and, therefore, as he was obliged to show his own illegal act in making out his case, he cannot recover.
"Granting that in order to show the wrongful act of the defendant, upon which he relied, the plaintiff was obliged to prove that he had made an illegal and void contract, and violated the law, the question still recurs and remains, whether the consequences of his illegal act affect his right of property in the horse, and whether the defendant's act was a direct injury to that right, or only in substance a breach of the illegal contract. The general property remained in the plaintiff. That does not seem to be anywhere denied, and is the.express doctrine of Dwight v. Brewster, and is necessarily involved in Phalen v. Clark, and Lewis v. Littlefield. It would not seem to follow as a legal or a logical consequence that because the plaintiff had made an illegal contract respecting the horse, which still left the property in him, that though the illegal contract necessarily appeared in the plaintiff's proof of a direct and substantive injury to his property, no recovery could be had. The illegal contract appears in the case; the plaintiff" has violated the law, and the contract is void. What then? The plaintiff's property in the horse still remains. Was the act of the defendant within the limits and scope of the contract, and a mere breach of it? If so, he is not liable. But if the act was not covered by the contract, and done within it and under it, but was a direct, voluntary wrong to the plaintiff's right of property, he may recover. The reasoning of the court in Gregg v. Wyman is quite conclusive to show that the plaintiff, having absolute power over his own property, and having delivered it to the defendant, the plaintiff can never show that the defendant has done any wrong to his right of property without showing the contract on which it was delivered. So, if the defendant should refuse to deliver the horse on demand, or should sell him or destroy him, it would in none of these cases appear that any wrong had been done to the plaintiff" until he showed the contract, and that the act of the defendant was not under and within it. Whether the horse was delivered on a sale to the from recovering for a tort beyond the limits and scope of that contract, then the plaintiff by like reasoning could not recover for any violation of his property thus obtained, even should it amount to a sale thereof. And the Supreme Court of Massachusetts have, in a very recent case, expressly overruled their former decision; and it may now be considered settled, that the action in such cases is maintainable.1
§ 770. Another class of contracts in violation of, or not in conformity to a statute, are such contracts as require a stamp, in order to their validity. Without discussing at length what instruments do or do not require a stamp, in order to their validity, it has been generally settled that a contract is not absolutely void for want of a stamp, under the United States revenue acts, unless the omission to annex it be fraudulent, or intended as an evasion of the law.2 defendant, or on an agency to sell, would not appear without evidence of the contract. It necessarily follows from this view of the case that a man is wholly without remedy for any injury that may be done to the horse he lets on Sunday, in violation of law, if the necessity of showing his illegal contract will preclude his recovery. Though the property is conceded to remain in the plaintiff, he has no remedy to enforce his right, because he cannot show it without showing the illegal contract of letting. And in all the numerous cases where horses are illegally let on Sunday, the hirer might with perfect impunity retain or sell them. This appears to us to be pushing the application of a well-settled principle to an unnecessary and extravagant length, not required nor warranted by the general current of the authorities. We are of opinion that the instructions of the court were correct, and that there must be judgment on the verdict."
1 Hall v. Corcoran, 107 Mass. 251 (1872); State v. Pike, 49 N. H. 399 (1870); Morton v. Gloster, 46 Me. 520 (1859). See Cotton v. Sharpstein. 14 Wis. 226 (1861). As to the right of action against a common carrier for injury to persons or property in transportation under contracts of carriage made on Sunday, see Carroll v. Staten Island R. Co., 65 Barb. 32 (1873); Merritt v. Earle, 29 N, Y. 120; Mahoney v. Cook, 26 Penn. St. 342; Philadelphia, W. & B. R. Co. v. Philadelphia Steamb. Co., 23 How. 209, 218; Smith v. Wilcox, 24 N. Y. 353. "It is not material whether the contract made was good or bad; it was enough to entitle the plaintiff to recover that the defendant, being a common carrier, had in his custody for transportation the plaintiff's property, and by his negligence, or in violation of his duty, it was lost." Wright, J., in Merritt v. Earle, supra.
2 See Tobey v. Chipman, 13 Allen, 123; Holyoke Machine Co. v. Franklin Paper Co., 97 Mass. 150; Desmond v. Norris, 10 Allen, 250.