122 P. 275 | Mont. | 1912
delivered the opinion of the court.
The defendant Merchants’ National Bank of Billings has on deposit the sum of $1,500, which is the balance remaining of a draft for $9,900 paid by the government of the United States for services performed by the defendant Douglas and one Parkinson under a surveying contract entered into and completed in the year 1907. The deposit is evidenced by a certificate thereof payable to E. E. Shephard & Co. and George F. Douglas. Shep-hard & Co. make no claim to any part of the money so deposited. This is an action in equity wherein the plaintiff seeks to have the said sum of $1,500 adjudged to belong to him, “that Shephard & Co. and Douglas be required to make the necessary indorse-ments on the certificate and surrender the same to him, and, in the event that this is not done, that the same be adjudged null and of no effect as against the plaintiff, 'and that the defendant Merchants’ National Bank of Billings turn over to the plaintiff the said sum of $1,500 upon surrender of said certificate, or, in the event of its being adjudged of no effect as against the plaintiff, that it pay to plaintiff the sum of $1,500; that it be adjudged that the defendant Douglas has no right or interest in or to said money or said certificate, ’ ’ and that plaintiff have general equitable relief. The complaint alleges, inter alia, that Douglas was in the employ of plaintiff in carrying out the surveying contract. The only portion of the answer of the defendant Douglas which is material here is an allegation to the effect that the plaintiff does not come into court with “clean hands” because his alleged
Plaintiff testified: “I had a talk with Douglas in January, 1907. In reference to this particular contract, I told him that
Mr. Parkinson testified: “Speaking about the examination, you have to satisfy the surveyor general that you are competent to do the work, and myself and Douglas did that. Before we made the application and before we entered into this contract, Dallas did not have anything to do with the contract. Dallas furnished the money to defray the expenses and carry out the contract. Myself and Douglas did not have anything to do with that; at least I did not, and Douglas did not to my knowledge. As a matter of fact Douglas did not do any work at all on this contract. He was working on the Helm contract. We signed a power of attorney, giving Dallas the power to collect this money, and afterward we signed another giving Shephard the power to collect the money, and the warrant was ordered sent to Shep-hard.”
This case is not difficult of solution on the facts alone. In the first place, the testimony of plaintiff shows that the $1,500 involved is not the profit on the Douglas and Parkinson contract. He also- testified that Shephard was repaid out of the proceeds of work performed by him six years before. But, aside from this consideration, there is not anything in the record to show that the contract between Dallas and Parkinson and Douglas was illegal, or involved any fraud upon the government, or any moral turpitude, or any misrepresentation or unfair dealing of any kind. It is true plaintiff declared Douglas to be his agent, and that he supervised and overlooked the work performed under the contract; but he was in a situation to do this on account of the fact that he was himself a surveyor. Shephard and Yegen would have had the same privilege of protecting the moneys advanced by them, had they been competent to exercise it. Plaintiff also testified that the contract would have been denied him, that he knew he could not get it. But for what reason? Simply because it was a rule of the department, as he understood, that a surveyor could not get more than one contract in any one year, or until he had filed his field-notes. We must presume that this contract was valid until the contrary appears. We are therefore
Although it may be true that a defense such as is interposed by Douglas can be made by a party in pari delicio, when directly sued, yet it is difficult to see how, in equity and good conscience, he can assert a claim to this money. He did not remain to fully carry out his contract, and, according to the testimony of Parkinson, no part of the disputed amount was earned by him. He gave Dallas a power of attorney to collect the amount due from the government, received his wages in full as stipulated, and now, after discovering that his power of attorney was ineffective, claims all of the balance in the hands of the bank, notwithstanding the fact that, if he has any "claim thereon whatsoever, Parkinson has one of equal merit. But Parkinson asserts no claim. One can easily find a reason why the government of the United States should readily assent to such arrangement! as were made between Dallas and Parkinson and Douglas, and also between Dallas and Shephard & Co. The work of surveying the public lands is an important branch of the service and must go forward. It is altogether reasonable, therefore, to assume that the officers in charge of the Land Department recognize the fact that money is necessary and must be available to prosecute the work. If Parkinson and Douglas were mere “dummies,” as the popular expression is, and took no part in carrying out the contract, an altogether different question might arise; but even so, after the contract price was fully earned, it is difficult to imagine any valid reason why it should not be paid over to the person entitled thereto, in the absence of fraud upon the government. The officers at Washington evidently recognize this fact, or, at least.
Many cases are cited- by counsel for the respondent in support of their contention that this contract was illegal and against public policy. The principal case is, perhaps, McGregor v. Donelly, 67 Cal. 149, 7 Pac. 422, where the parties entered into a contract whereby one was to make application for the purchase of swamp land under the California Act of 1863 (Stats. 1863, p. 591) for the use and benefit of the other. The action was in equity to compel the delivery to plaintiff by defendant of the certificate of purchase. The court said: “ We are of opinion that the intent of the Act of 1863 was plainly that the application and purchase was to be for the benefit of the applicant himself—a policy adopted to prevent the acquisition of large tracts of land by one person through the use of other persons. If such evasion of the statute as is attempted in this case should be allowed, it would be a very easy matter for one who had [already] acquired 640 acres of land, and therefore could not take the oath prescribed, by the employment of others who could take the oath, to acquire for himself, in manifest disregard of the intent and policy of the Act, many times 640 acres. ’ ’
In the case of Morrison v. Bennett, 20 Mont. 560, 40 L. R. A. 158, 52 Pac. 553, cited by respondent, this court determined that the whole transaction involved a fraudulent conspiracy to gain money upon a horserace by ‘ ‘ a scheme of deception, misrepresentation and cunning.” Mr. Justice Hunt in writing the opinion of the court said: ‘‘No court will lend its aid to enforcing an accounting in such a case. The very statement of the evidence proves that the object of the parties was most iniquitous, and that the methods agreed upon, and doubtless fully executed, were all dishonest, immoral, deceitful, and corrupt. Men who associate themselves for the purpose of cheating others cannot ask the courts to distribute their booty by adjudging the demands of one against the other arising out of their quarrels over their plunder.”
Courts are reluctant to declare a contract void as against
The judgment is reversed; and on the authority of Stevens v. Trafton, 36 Mont. 520, 93 Pac. 810, the cause is remanded to the district court of Yellowstone county with directions to enter a judgment or decree in favor of the plaintiff, in accordance with the prayer of his complaint.
jRemanded, with directions.