Miller v. Donovan

• Citation: 83 P. 608,11 Idaho 545
• Parties: MILLER v. DONOVAN
• Decision Date: 12 December 1905
• Court: Idaho Supreme Court

83 P. 608

11 Idaho 545

MILLER v. DONOVAN

Supreme Court of Idaho

December 12, 1905

PLEADINGS-ISSUES MADE UNDER DENIALS-ILLEGAL CONTRACT AND FAILURE OF TITLE MUST BE AFFIRMATIVELY PLEADED.

1. Where plaintiff alleges the sale and delivery of property and failure and refusal by defendants to pay the purchase price and defendants deny purchasing or receiving the property evidence is not admissible under such denial for the purpose of showing illegality of contract or failure of title in plaintiff to the property alleged to have been sold.

2. A defendant who desires to show illegality of contract as being in violation of a statute or of public policy or would show fail- ure of title or consideration must affirmatively allege such defense so as to apprise the adverse party of the nature of defense he will be called upon to meet.

3. Failure to make such allegations will only be excused where the illegality or failure of title or consideration appears from the complaint itself.

4. Issues not raised by the pleadings and presented to the trial court will not be considered on appeal.

(Syllabus by the court.)

APPEAL from District Court in and for Kootenai County. Honorable Ralph T. Morgan, Judge.

Action for debt. Judgment for plaintiff. Defendants appeal. Affirmed.

Judgment affirmed. Costs awarded to respondent.

Charles L. Heitman, for Appellant.

It is a penal offense by act of Congress to cut down timber upon any of the public lands of the United States, with intent to export, dispose of, use or employ the same in any manner whatever other than for the use of the navy of the United States. (U.S. Rev. Stats., sec. 2461.) A contract founded on an illegal consideration, or which is made for the purpose of furthering any matter or thing prohibited by statute, or to aid or assist any party therein, is void. This rule applies to every contract which is founded on a transaction, malum in se, or which is prohibited by statute on the ground of public policy. (Swanger v. Mayberry, 59 Cal. 9194, and cases cited.) A penalty inflicted by statute upon the commission of an act implies a prohibition of it as an offense, so as to make a contract based on such act void. (Mitchell v. Smith, 1 Binn. 110, 2 Am. Dec. 417; Ladda v. Hawley, 57 Cal. 51.) Volume 20 of the United States Statutes, 89, which prescribes a penalty for cutting or destroying any timber growing on any land of the United States, but provides that "nothing in said act construed shall prevent any miner or agriculturalist from clearing his land in the ordinary working of his mining claim or preparing his farm for tillage, or from taking the timber necessary to support his improvements." (United States v. Smith, 8 Saw. 107, 11 F. 487.) Tillage means husbandry--the cultivation of the land, particularly by the plow. (United States v. Williams, 9 Saw. 374, 18 F 477.) Until the settler has perfected his right by full compliance with the law and has made final proof, he has no right to cut down and sell the timber on other portions of the land which he is not intending to immediately put into cultivation. (Stone v. United States, 167 U.S. 193, 17 S.Ct. 778, 42 L.Ed. 127; Shiver v. United States, 159 U.S. 491-498, 16 S.Ct. 54, 40 L.Ed. 231; United States v. Cook, 19 Wall. 591, 22 L.Ed. 210.)

Edwin McBee, for Respondent.

Appellant in his brief assumes that the logs were illegally cut, and discusses that proposition to the exclusion of all others. We think it is shown that appellant is not in a position, under the pleadings, to make this defense on appeal, for the reason that no such issue is raised in the pleadings. The burden of proof is on the defendant to show by the preponderance of the testimony that the timber was cut unlawfully. (United States v. Routledge, 8 N. Mex. 385, 45 P. 883.) Dolan was lawfully on the land and had a right to cut timber therefrom, and the presumption follows that the cutting was lawful. (Denver etc. R. R. Co. v. United States, 9 N. Mex. 382, 54 P. 241.) The law in the federal court on these questions is fully laid down in the case of Shiver v. United States, 159 U.S. 491, 16 S.Ct. 54, 40 L.Ed. 231. Section 2461 of the Revised Statutes of the United States is not applicable to this case, or to any case of cutting timber by a bona fide homesteader, or under authority from such homesteader. (Grubbs v. United States, 105 F. 314, 44 C. C. A. 513.) In De Groote v. Vanduzer, 17 Wend. 170, Bronson, J., said: "It cannot, I think, be maintained that a contract which is not itself free from vice can be avoided on the ground that it may possibly facilitate an illegal transaction." (Tracy v. Talmage, 14 N.Y. 162, 67 Am. Dec. 132; Holman v. Johnson, 1 Cowp. 341; Waymell v. Reed, 5 Term. Rep. 599; Green v. Sizer, 40 Miss. 530; Holt v. Barton, 42 Miss. 711, 2 Am. Rep. 640; Rogers v. Waller, 4 Hayw. (Tenn.) 205, 9 Am. Dec. 758; 2 Chitty on Contracts, p. 977.)

AILSHIE, J., SULLIVAN, J. Sullivan, J., Stockslager, C. J., and Ailshie, J., concur.

OPINION

The facts are stated in the opinion.

AILSHIE, J.

The plaintiff commenced this action in the lower court to recover on two causes of action. By his first cause of action he alleged the sale and delivery to the defendants of four hundred and forty thousand eight hundred and fifteen feet of white pine, tamarack and cedar sawlogs, for which defendants promised and agreed to pay the sum of $ 1,569.12; that the defendants have failed, neglected and refused to pay any part thereof save and except the sum of $ 517.32; that there is still due and owing to plaintiff from defendants the sum of $ 1,051.80. By the second cause of action plaintiff alleged that on about June 20, 1903, he entered into a contract with the defendants whereby he agreed to drive four hundred and forty thousand eight hundred and fifteen feet of sawlogs from a point on Dolan creek in Kootenai county to Clark's Fork river at the mouth of Dolan creek, for the sum of fifty cents per thousand feet, and that the defendants agreed to furnish and put in a boom in Clark's Fork river to hold and protect the logs to be driven by plaintiff. And plaintiff alleges that he commenced to drive the logs, but that defendants failed, neglected and refused to prepare and put in the boom, and that by reason thereof plaintiff was put to extra labor, expense and trouble in the performance of the contract on his part, and that such extra labor, expense and trouble was to his damage in the sum of $ 75, and that the defendants had failed and refused to pay the plaintiff for his services in driving the logs in the amount of $ 220.40 and prayed judgment for the total sum of $ 1,347.20. Defendants' answer consisted of denials. In answer to the first cause of action defendants deny "that plaintiff did, on or about the 1st day of June, 1903, or at any other time, sell or deliver to the defendants the four hundred and forty thousand eight hundred and fifteen feet of white pine tamarack or cedar sawlogs mentioned in the complaint of the plaintiff. " Denies that they promised to pay plaintiff the sum of $ 1,569.12, or any sum; deny the reasonable value of the logs; deny that they paid the plaintiff anything on the contract. The defendants closed their answer to plaintiff's first cause of action with the following paragraph: "Defendant further answering avers that on or about June 1, 1903, the plaintiff did negotiate with the defendant for the sale of certain sawlogs, but that during said negotiation the defendant discovered that said logs were not the property of the plaintiff, but that they had been removed from land not owned by the plaintiff, and without the permission of the owner thereof, and forthwith did defendant cease all negotiations and refuse to make any contract pertaining to said logs, and refused to accept said logs under any condition whatever; that during the pendency of the above-named negotiations and subsequent thereto, and independent thereof, the plaintiff secured credit of the defendant in the amount of $ 517.32." The answer to plaintiff's second cause of action consists of specific denials. Defendants then plead a counterclaim against plaintiff for the sum of $ 517.32. The case went to trial upon the issues thus made before the court without a jury. The court in its decision found in favor of the plaintiff and against the defendants on all the issues, and ordered judgment in favor of the plaintiff for the sum of $ 1,347.20, and judgment was thereupon entered accordingly. During the progress of the trial the defendants offered to introduce evidence tending to show that the logs for which plaintiff was seeking to recover the purchase price were cut by plaintiff from unsurveyed government lands, and that the title to the logs was not in the plaintiff at the time, but was in the United States government. To this offer the attorney for the plaintiff objected on the grounds that such question had not been made an issue by the pleadings in the case. The court, in ruling on the objection, said: "The question of title to these logs is not in issue here in the pleadings." After this ruling by the court it was agreed between counsel for the respective parties that the defendants might introduce such evidence as they had tending to show failure of title in plaintiff to the property...