Parsons v. Randolph
H. R. Parsons v. Edward M. Randolph
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Philips, P. J.
— I. It is conceded by both parties that the note sued on was given pursuant to and in furtherance of the contract pleaded in the answer. That this contract is void as being in contravention of public policy and good morals is conceded by plaintiffs The evidence shows quite clearly that the plaintiffs were either immediately interested in the contract at the time of its execution, or that they became so shortly thereafter, and were fully apprised of the consideration of the note when they took the assignment of Davidson’s interest therein; in fact, the note was made to the plaintiffs, except Slaughter, who knew all about it. As the official custodian of the records of his office defendant held them in trust for the public. Every citizen had the right of access to them, and to úse them for any legitimate purpose. And when the defendant and Davidson stipulated that the defendant should either exclude others from using the records for the purpose of making out abstracts, or to use his influence to prevent and hinder .their free use, it was a most reprehensible compact, tending to the subversion of official duty, and inviting official corruption.
The learned counsel for plaintiffs, quite ingeniously seeks to evade the effect of the admitted taint in the contract by assuming that the test in such actions as this is, whether the plaintiff is compelled in opening to the court or jury to bring in the illegal transaction in order to develop his case; that if he can show a complete cause of action without being compelled to resort to the illegal transaction, he may recover, notwithstanding the cause ©f action may have had its origin remotely in a transaction forbidden by sound policy and morals.
*360 If this position be correct, A could sue and recover judgment against B on a note given him by B in consideration that A would murder some enemy of B. For, just as the plaintiff did in this case, all A would have to do at the trial to make out a prima facie case, would be toread his note in evidence and rest. It being a promissory note for value expressed on its face, by the rule of law it imports a valuable consideration.
The rule invoked by plaintiff has no application to the facts of this case. It can only apply to that class of actions where the cause of action is not essentially based upon something which was illegal, but upon some supervening right not depending mediately upon the illegal transaction for its support. One of the very authorities cited by plaintiff (Frost v. Plumb, 40 Conn. 111 -113), shows the proper distinction : “ The plaintiff cannot recover whenever it is necessary for him to prove, as a part of his cause of action, his own illegal transaction ; but if he can show a complete cause of action without being obliged to prove his own illegal act, although such illegal act may incidentally appear, and may be important as explanatory of other facts in the case, he may recover. It is sufficient, if Ms cause of action is not essentially founded upon something which is il legal,.”
The cause of action sued on by plaintiff, is essentially founded upon something which he himself admits is illegal. The note was provided for in the very contract, and was given in pursuance thereof. It has no other consideration.
Gray, J., in Hall v. Corcoran ( 107 Mass. 253 ), very succinctly expresses the rule thus : “ The general principle is undoubted, that courts of justice will not assist a person who has participated in a transaction forbidden by statute to assert rights growing out of it, or to relieve himself from the consequences of his own illegal act. Whether the form of action is in contract or in tort, the test in such case is, whether, when all the facts are dis■ *361 closed^ the action appears to be founded in a violation of law. in which, the plaintiff has taken part.”
Where the defendant, as in this case, pleads and proves the contract, it is the same as if the plaintiff had put it in evidence to show the consideration. Braitch v. Guelick, 37 Ia. 212 ; Warren v. Chapman, 105 Mass. 87 . This precise question is considered and determined adversely to plaintiff’s contention in Hamilton v. Schull's Adm'r ( 25 Mo. 165 ); vide McCoy v. Green ( 83 Mo. 626 ).
' II. It is further insisted by plaintiff that although the money was loaned in pursuance of the illegal compact, the plaintiff did not part with the right to the money, or its return. In support of this proposition we are referred to the following cases: Hall v. Corcoran, 107 Mass. 251 ; Dwight v. Brewster, 1 Pick. 50 ; Woodman v. Hubbard, 5 Foster, 67 ; Stewart v. Davis, 31 Ark. 518 . These authorities are inapplicable. They but assert the principle, that where A hires a horse to B to perform a journey to a designated place, in violation of the Sunday law, which prohibits such contracts on Sunday, and B turns aside and goes to some other point, or otherwise converts the horse, the illegal hiring will not prevent the owner from recovering his horse or suing for' the conversion. While A could not recover, on the contract of hiring, the stipulated amount, he did not part with his right of property in the horse, nor his right to have him returned.
Whereas, in the case at bar, the plaintiff did part with his money. Its absolute ownership was passed to the borrower. The creditor in suing on the note does not seek to recover the money in kind, nor for a wrongful' conversion, but he sues on the contract, and must recover in damages for its breach, the failure to pay according to the bond.
III. The record shows that both parties appealed from the judgment of the common pleas court; but the plaintiff claims that he brought the transcript to this court, *362 and he is designated as appellant on the docket here, and the defendant as respondent. The bill of exceptions is a joint bill. Respondent contends that one record covers the whole case, and that he is entitled to have the issue on his counter-claim reviewed on this appeal. ' Be-this as it may, I am unable to see what defendant has appealed from. The court simply found the issues forth© defendant; and its judgment was that the plaintiffs take nothing. by their writ, and that the defendant go without day, and recover of the plaintiffs his costs in this behalf expended, and that execution issue therefor.”
There does not appear to have been any separate-finding as to the defendant’s counter-claim. If it be conceded that this was an imperfect finding by the court, it was error ; but such errors, as I understand the rule of practice, can only be taken advantage of by appropriate-motion in the lower court. Hickman v. Byrd, 1 Mo. 495 ; Fenwick v. Logan, 1 Mo. 401 ; Davidson v. Peck, 4 Mo. 446 ; Finney v. State, 9 Mo. 633 : Biglow v. Ry. Co., 48 Mo. 510 ; State ex rel. v. Dulle, 45 Mo. 271 ; Newton v. Miller et al., 49 Mo. 298 ; Sweet v. Maupin, 65 Mo. 65 , where all the authorities are reviewed.
The defendant did not file any motion in arrest; while his motion for new trial not only failed to raise any such question, but complained of the verdict of the court, because it had improperly found the issue against him on his counter-claim. This was not sufficient. Sweet v. Maupin, supra.
It follows that the judgment of the common pleas court should be affirmed. Hall, J., concurring, it is so ordered.
Ellison, J., having been of counsel, did not sit at the hearing.
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