O'Hara v. Carpenter
| Decision Date | 04 October 1871 |
| Citation | 23 Mich. 410 |
| Parties | John O'Hara and another v. Horace Carpenter |
| Court | Michigan Supreme Court |
Heard July 10, 1871
Error to Washtenaw circuit.
This was an action of assumpsit, brought by Horace Carpenter against John O'Hara and Daniel O'Hara.
The case is fully stated in the opinion.
Judgment of the circuit court reversed, with costs, and a new trial awarded.
Lawrence & Frazer, for plaintiffs in error
N. W Cheever and H. J. Beakes, for defendant in error.
The action in the court below appears to have been brought upon a promissory note given by John O'Hara, with Daniel O'Hara as surety, to Horace Carpenter and William S. Maynard. The facts are agreed upon, and are substantially the following:
1. That the defendant, John O'Hara, was, at, and before, the making of the note, to wit: on and before the 14th day of February, 1865, a citizen of the United States, a resident of the township of Ann Arbor, Washtenaw county, Michigan, of the age of thirty years, and liable to be drafted into the military service of the United States and duly enrolled under the acts of Congress then in force.
2. That at the making of said note, said John O'Hara had not been, nor was he afterwards, actually drafted into the military service of the United States.
3. That a draft had been ordered by the proper authority, under which the quota of men required to be furnished from the township of Ann Arbor aforesaid had been assigned, apportioned and established, and that at the time of the making of said note said quota had not been filled, and a draft was impending to fill such quota unless the same should be filled by volunteers.
4. That the defendants executed and delivered the note to the payees therein named, and the date of such note, and that the plaintiff was the holder thereof at and before the commencement of this suit.
5. That the consideration for said note was the following contract, executed and delivered by said Carpenter and Maynard to John O'Hara at the date of the note, to wit:
Upon this state of facts the makers of the note contended that the instrument was invalid, because the contract which was the consideration therefor was contrary to public policy and void in law, and for that reason was incapable of supplying the necessary consideration for the promise contained in the note. But the circuit judge held otherwise, and the plaintiff had judgment. We think the circuit judge erred in his ruling. We find on examination of the contract that its general purpose was to insure and protect a citizen liable to perform military duty, against being compelled to do so. Some question was made on the argument, regarding the precise meaning of the words in the contract, "be drafted so as to do duty in the army" etc; but we can put no other construction upon them than that the parties insuring only undertook to pay the large sum specified by way of indemnification in the event of the draft being made effectual by a compulsory service of the insured party as a conscript in the army. The mere drafting was not to entitle the party to indemnity, but he was to be drafted so as to do duty; or in other words, do duty in the army in consequence of the drafting. This was what was insured against, and for such a drafting the indemnity was provided. The contract is compared by the defendant in error to other contracts of insurance, and it is strongly insisted that it is equally entitled to legal protection; but it differs from other insurance in the important particular that in other cases the indemnity is against the actual or possible consequences of some evil, and makes the insurer interested with the insured in preventing such evil if possible, and in punishing the guilty cause of it, if such there be; while this contract, on the other hand, insures against the enforcement of a lawful proceeding which the law has directed for the protection and support of the government, and the interest of the insurer lies in having the proceeding defeated, and in giving countenance, encouragement and aid to any persons or to any measures which, legally or illegally, may interpose obstacles.
It is true that there was a mode in which the contemplated protection might have been legally given in this case; that is to say, by providing a substitute; and it is urged with much force that when a contract is capable of legal performance, it is but just to assume that the parties had such legal performance in view when they entered into the contract, and that...
To continue reading
Request your trial
-
Wexler v. Cal. Fair Plan Ass'n
...S.C. 16, 135 S.E.2d 362 ( Ramey ) [wife insures husband's life without his knowledge and then gives him arsenic]; cf. O'Hara v. Carpenter (Mich. 1871) 23 Mich. 410, 415 ["all reasonable men would concede that it was indiscreet and dangerous to contract with him on a basis which might quiet ......
-
MemberSelect Ins. Co. v. Flesher
...be void because such policies present insureds with unacceptable temptation to commit wrongful acts to obtain payment. O'Hara v. Carpenter, 23 Mich. 410, 416-417 (1871). Thus, "fundamental principles of insurance" require the insured to "have an insurable interest before he can insure: a po......
-
A.B. Petro Mart, Inc. v. Ali T. Beydoun Ins. Agency, Inc.
...temptation to commit wrongful acts to obtain payment." Morrison, 286 Mich.App. at 572, 781 N.W.2d 151, citing O'Hara v. Carpenter, 23 Mich. 410, 416–417 (1871) ; see also Crossman v. American Ins. Co. of Newark, NJ, 198 Mich. 304, 308, 164 N.W. 428 (1917). Therefore, " ‘a policy issued when......
-
Brady v. Yost
... ... of Law, 877; ... 9 Am. & Eng. Ency. of Law, 908, 915; Clippinger v ... Hepbaugh, 5 Watts & S. 315, 40 Am. Dec. 519; ... O'Hara v. Carpenter, 23 Mich. 410, 9 Am. Rep ... 89; Brooks v. Cooper, 50 N. J. Eq. 761, 35 Am. St ... Rep. 793, 26 A. 978.) An agreement whose object is to induce ... ...