Clements v. O. B Graham & Co.

Wyly, J., concurring. The evidence satisfies me that Clementenever had actual or corporeal possession of the cotton. It was sent by the confederate authorities from San Antonio on wagons employed in confederate service, with bills of lading addressed to Major Baughn, confederate cotton agent at Rio Grande City, and from there it was to be forwarded to Wm. W. Perkins, confederate agent at Matamoros, to whom also bills ot lading were forwarded from San Antonio. The cotton was sent from the interior of Texas doubtless for the purpose of meeting the engagements of the confederate government with Clements, and it was designed that these agents, to whom the bills of lading were forwarded, should make the delivery at the mouth of the Rio Grande, pursuant to contract, and that the debt of the confederate government to Clements for army supplies was to be credited with the proceeds of the cotton at the price per pound stipulated in the contract. Being apprehensive that the cotton might not reach its destination, in view ot the impending fall of the confederacy, and preferring to take the title of the cotton in himself while it was in transitu from San Antonio to Rio Graude City,- Clements entered into a contract with Perkins, at Matamoros, for the cotton, and the bills of lading were indorsed and delivered by Perkins, agent for the confederate govern - ment, to Clements. This was in May, 1865. It was doubtless a sale and constructive delivery of the cotton, the drivers of the wagons becoming the bailees of Clements. But it is siiown that at the time of the contract between Clements and Perkins the former was a citizen of New York, a loyal State, and the latter was an inhabitant of an insurrectionary district; besides, he dealt only with Clements in behalf of the rebel government and as its agent. Under the act of Congress commonly called the non-intercourse act, the parties were incapable of making a conventional obligation. The contract of May, 1865, did not, therefore, transfer either the title or the possession to Clements. It was an absolute nullity. The constructive delivery resulting from the transfer of' the bills of iading and the sale of the cotton while it was in transitu, gave no possession, because the whole contract was totally void on account of the incapacity of the parties. Clements could not appoint as his agents the wagon drivers having the cotton in charge while it was being hauled from San Antonio -to Rio Grande City, because of the same impediment which prevented Mm from making a valid contract with Perkins. These drivers lived *448 in rebel lines, and they were employed in the service of the enemies of the United States. The lawless persons who took the cotton, compelled the agent of the rebel government at Rio Grande City to give them the bills of lading before the cotton arrived. When it arrived on the wagons they took it from the drivers forcibly and crossed it into Mexico. The actual or corporeal possession of the cotton, therefore, never passed out of the rebel government or its agents and employes, the carriers, until it was taken by the robbers and crossed into Mexico and sold. It was yet in the actual custody of the rebel government, or its agents, when the robbery was committed. Now, the plaintiff has no cause of action against the defendants, because their agent bought part of the cotton from the robbers in Mexico, knowing of the robbery, unless he had both ownership and possession thereof. He had neither, as we have just seen, because both his title and constructive possession resulted alone from the contract of May, 1865, with Perkins, at Matamoros, and that entire contract was absolutely void, because of the incapacity oí the parties to make it, and because of the immorality thereof. The fact of' possession outside of that void contract is not shown by the evidence. The- plaintiff never got the fruits of that contract, because he never was able to get the actual possession .or custody of the cotton, the object thereof. Owing to the character of the contract of May, 1865, the plaintiff can not get the aid of the court to enforce his rights resulting therefrom, the policy of the law being to give no remedy to an immoral contract. I therefore concur in the decision of this case.