Haggerty v. St. Louis Ice Manufacturing & Storage Co.

• Decision Date: 15 March 1898
• Citation: 143 Mo. 238,44 S.W. 1114
• Court: Missouri Supreme Court
• Parties: HAGGERTY et al. v. ST. LOUIS ICE MANUFACTURING & STORAGE CO.

44 S.W. 1114

143 Mo. 238

HAGGERTY et al. v. ST. LOUIS ICE MANUFACTURING & STORAGE CO.

Supreme Court of Missouri, Division No. 2.

March 15, 1898.

GAME — CONTRACT FOR STORAGE DURING "CLOSED SEASON" — VALIDITY.

Plaintiffs employed defendant to store game during the "closed season," which they had on hand at the commencement of such "closed season," intending to withdraw it when the "open season" returned. Held, that defendant's contract to preserve the same, and to restore it, was void, and plaintiff could not recover for its breach, under Rev. St. 1889, §§ 3901, 3902, prohibiting the killing of such game at certain times of the year, and making it a misdemeanor for any person to have in his possession any of the game specified during the closed season.

Appeal from St. Louis circuit court.

Action by John E. Haggerty and others against the St. Louis Ice Manufacturing & Storage Company for breach of contract for the storage of certain game. From a judgment for defendant, plaintiffs appeal. Affirmed.

R. H. Kern, for appellants. Henry E. Mills, for respondent.

SHERWOOD, J.

The business of plaintiffs, resident in St. Louis, was that of dealers in game, while the defendant corporation was engaged in that city in the business of "cold storage," which embraced the storing and preservation of produce and game of all kinds. Plaintiffs, during what is known as the "open season," were accustomed to buy and sell the different kinds of game, and, when what is known as the "closed season" was about to arrive, were in the habit of storing such game as remained on their hands until such time as the "open season" again returned, when they would resume their erstwhile prohibited business. So it was that in the year 1892, between the 15th of November and the 26th of December, the defendant corporation made plaintiffs an offer to carefully store and preserve the same in a cold, frozen condition for such time as plaintiffs might store the same with it, and to restore the same to plaintiffs in as good condition as when received from plaintiffs. This offer was based upon the consideration of the payment of so much per pound for such storage. Plaintiffs desiring that such game be so kept and preserved, and intending that such game should be stored with defendant corporation during the "closed season," and withdrawing it when the "open season" should return, accepted the offer aforesaid, and on the 18th of November, 1892, stored with defendant a large quantity of game, to be withdrawn from defendant's custody when and at such times as the law would permit plaintiffs to dispose of the same. At the time of its being thus stored the game was in good condition. On November 18, 1893, defendant presented to plaintiffs a bill for such storage, amounting, etc., which plaintiffs paid. Thereupon plaintiffs proceeded to remove such game from the cold-storage rooms of defendant, and in doing so discovered that defendant had failed to preserve such game in a cold and frozen condition, whereby the same became rotten and worthless, and was not in good condition, as when delivered to defendant. For this breach of contract damages in the sum of $7,000 were demanded, and, being refused, this suit was brought. This is the substance of the first count in the petition; the second count is like unto it. Defendant demurred to the first count on these grounds: "Now comes defendant, and demurs to the first count of plaintiffs' second amended petition, for the reason that it does not state a cause of action against defendant, and because it does show affirmatively that plaintiffs endeavored to make with defendant a contract for the storage of game during the period of the year when the possession of such game was prohibited by law, and that the alleged contract was unlawful, and in violation of a penal statute of the state of Missouri, and nonenforceable, and because it appears that, at plaintiffs' request, said game was carried on plaintiffs' account during the season of 1893, prohibited by law." The trial court adjudged the petition insufficient in law, and, plaintiffs declining to plead further, final judgment was rendered; hence this appeal.

Section 3901, Rev. St. 1889, prohibits the killing of certain game at certain times of the year. Section 3902, Rev. St. 1889, makes it a misdemeanor for any person to "purchase, have in his possession or sell any of the game birds or animals specified in the next preceding section, or any fresh pieces or parts of said animals, during the season when the catching and killing of same is prohibited, or shall purchase, have in possession or sell any of the game birds or animals caught or killed contrary to the provisions of said sections." As shown by the very interesting and exhaustive opinion of Mr. Justice White in Geer v. Connecticut, 161 U. S. 519, 16 Sup. Ct. 600: "From the earliest traditions, the right to reduce animals feræ naturæ to possession has been subject to the control of the lawgiving power." The exercise of this power has been definitely traced back, even as far as the time of Solon, who forbade the Athenians to kill game; and in France, as early as the Salic law, the right to reduce a part of the common property in game into possession, and consequent ownership, was regulated by law. Such regulations prevailed in every country in continental Europe and in England. Treating of this subject, Blackstone says: "There still remains another species of prerogative property, founded upon a very different principle from any that have been mentioned before, — the property of such animals, feræ naturæ, as are known by the denomination of `game,' with the right of pursuing, taking, and destroying them; which is vested in the king alone, and from him derived to such of his subjects as have received the grants of a chase, a park, a free warren, or free fishery. * * * In the first place, then, we have already shown, and indeed it cannot be denied, that by the law of nature every man, from the prince to the peasant, has an equal right of pursuing and taking to his own use all such creatures as are feræ naturæ, and therefore the property of nobody, but liable to be seized by the first occupant, and so held by the imperial law even so late as Justinian's time. * * * But it follows, from the very end and constitution of society, that this...