The opinion
Pound, Ch. J. (concurring in result).
If the contract in suit put defendant in the position of one who had conspired with plaintiff to induce a breach of the plaintiff’s contract of passage with the
Graf,
the case would be simple.
On the pleadings, however, we have the bare facts (a) of the contract of passage; (b) of the contract in suit.
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Evidence may develop guilty conduct on the part of defendant but we may not assume it.
The only question is whether the contract sued on is, on the face of the pleadings, a bargain on the part of plaintiff to commit a tort.
The case is one where plaintiff, having secured passage on the
Graf
under conditions which precluded him from sending out information, makes the contract in suit. Obviously plaintiff intended to breach the contract of passage when he made such contract. Defendant’s intentions do not appear. How is the case to be differentiated from cases where A, having contracted to sell a horse to B, sells the horse to C? One has the power, if not the right, to breach such a contract) It is not a “ wrong ” to breach such a contract. A mere breach of contract is not a “ wrong,” the sole remedy being damages for breach. I am unable to see how the rights of the public are involved or interfered with. It is a mere matter of private right.
To bargain to commit a tort, however, is illegal. Therefore, we must seek our answer here by inquiring whether plaintiff bargained to commit a tort. Was it a “ wrong,” independent of the breach of contract, to the
Graf
for him to go on board, intending to breach and actually breaching his contract of passage?
The
Graf
had no reason to believe that plaintiff would breach his contract of passage when he went on board. He impliedly represented that he would not. Having obtained a strategic position with a fraudulent intent, he did a wrong to the
Graf
when he broke the terms of his contract of passage. The contract with defendant, therefore, contemplated a “ wrong ” to the
Graf
independent of the breach of the contract of passage. It was, therefore, illegal and the defense pleaded is good.
Otherwise, plaintiff was guilty of no wrong independent of contract but of a mere breach of contract and he made
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no bargain to commit a tort. (See
Rich
v.
N. Y. C. & H. R. R. R. Co.,
87 N. Y. 382, 397 ; 3 Williston on Contracts, § 1738; American Law Institute, Restatement of Law of Contracts, § 571.) It is not right to break one’s contract (See " The ‘ Right ’ to Break a Contract,” by Barbour, 16 Mich. Law Rev. 106; Selected Readings on the Law of Contracts, 500), but it is only a breach of duty which the parties have fixed for themselves and it cannot be turned into a torf.