Hill v. Smith (62 U.S. 283)

THIS case was brought up by writ of error from the Circuit Court of the United States for the district of Indiana.

It was an action brought upon the contract recited in the opinion of the court, to which there was a general demurrer, which was sustained by the Circuit Court.

Hill, who was the plaintiff, then brought the case up to this court by a writ of error.

It was submitted on a printed argument by Mr. O. H. Smith for the plaintiff in error, no counsel appearing for the defendants.

Mr. Smith made the following points

First. That the Circuit Court erred in sustaining the demurrer to the first and second counts, and each of them; to sustain this position, we rely upon the positions above, and authorities cited, to sustain the third, fourth, fifth, sixth, seventh, and eighth points.

Second. That the court erred in sustaining the demurrer to the whole declaration, if there be one good count, or part good of a divisible count.

1 Chitty, p. 665, Ed. 1855, notes c(3) and authorities.

Third. The guaranty set out in the first and second counts was an original undertaking of the appellees, and is binding in law.

4 Maule and Selw., 66; 8 East., 231.

1 Johns. R., 362; 1 Parsons on Con., 480.

2 Howard, 450; 12 East. R., 227.

Cowper R., 714; Chitty on Con., 80, 81.

1 Parsons on Con., 495.

6 E. C. L. R., 32; 41 E. C. L. R., 848.

1 How., 187; 10 Pet., 493.

Fourth. The whole contract set out in the first and second counts being in writing, and founded upon a sufficient consideration, was obligatory upon the parties.

10 Moore R., 395: 3 Bing. R., 107.

8 Cush. R., 159; 15 Penn. St. R., 156.

Fifth. Suppose the undertaking of the appellees to be collateral to a contract of the railroad company, the undertaking or guaranty is valid in law, and binding on the appellants.

2 How. R., 426; 7 Cranch R., 69.

10 Peters R., 482; 7 Peters R., 122.

10 Moore R., 395; 3 Bing. R., 3, 107.

14 Illinois R., 237; 15 Penn. St. R., 27.

2 Story on Con., p. 400, sec. 862, and authorities cited, Ed. 1857.

17 Peters R., 161; 5 B. and Ad., 1109.

Mood. and Al. R., 394.

Sixth. Neither the railroad company nor their guarantors can set up the illegality of their executed contract, either at law or in equity, without placing the parties in statu quo.

4 Blackf., 515; 5 Blackf., 441.

7 Blackf., 55; 8 Blackf., 409, 469.

Adams Equity, 191.

1 Story on Con., p. 601, sec. 497, note 2, Ed. 1857.

Hill on Trustees, p. 221, Ed. 1857.

Seventh. The third count sets out an original, independent contract between the appellant and the appellees, founded upon a sufficient consideration, and the facts being admitted by the general demurrer, raising no question as to the form, is valid in law, and the demurrer to the whole declaration should have been overruled.

1 Parsons on Con., 497, and authorities.

37 E. C. L. R., 120; 2 McLean, 103.

3 McLean, 387; 1 Story on Con., p. 530, sec. 431.

Ib., p. 544, sec. 551.

Eighth. The undertaking of the appellees is valid and binding, whether an action could be maintained against the railroad company or not.

1 Burr. R., 371; 1 B. and Ald., 297; 15 E. C. L. R., 47.

1 Stark. R., 14, 19; 2 E. C. L. R., 16, 18.

Mr. Justice GRIER delivered the opinion of the court.