Cunningham v. Breed

4 Cal. 384

• Court: California Supreme Court
• Decided: October 15, 1854
• Status: Published

Opinion

Mr. J. Heydeneeldt

delivered the opinion of the Court.

Mr. Ch. J. Murray concurred.

The defendants object that they ought not to pay the damages which they contracted to pay, because the business which they enjoined, and for which damages are claimed, was a public nuisance. This is the first time I have heard of such a defense to avoid the obligations of a contract.

A legitimate occupation is sometimes a public nuisance, but a party is nevertheless entitled to the fruits of his labor, until an abatement takes place in some proper form. A gunpowder mill may be a public nuisance, but this would not allow one who had purchased powder to set it up in defense against the recovery of the purchase money. The defense here is just as absurd, when examined, as in the case by which it is illustrated.

Judgment affirmed with ten per cent damages.