21 Ind. App. 347 | Ind. Ct. App. | 1899
The only question for review in this appeal is the action of the court in overruling appellant’s demurrer to appellee’s second paragraph of answer. The decedent in his lifetime commenced the action, but while it was pending he died, and his administrator was substituted as plaintiff below. The complaint was originally in one paragraph, but after decedent’s death, and the substitution of his administrator, an additional paragraph of complaint was filed. The two paragraphs are founded upon a written contract between appellee and the decedent, which contract is made an exhibit. It is not necessary to set out the complaint in detail, but that the pertinency of the facts averred in the third paragraph of answer may clearly appear, it is important that we show the material matters embraced in the contract. The contract sued upon is signed by the decedent as party of the first part, and appellee and others, parties of the second part, and by its terms the decedent agreed to locate a canning factory
The third paragraph of answer avers that in December, 1895, various subscribers to said contract and enterprise, and said decedent, met together for the purpose of determining how and in what manner the said seventy-four lots were to be awarded and dis
As Ave have said, the contract before us, in its conception, was not subject to the infirmity of the contract in Lynch v. Rosenthal, supra, but in the manner of its execution, which was directed and participated in by appellant, it was inoculated with a like vice; and under the authorities, appellant, coming into court with unclean hands, and asking the enforcement of a contract which he himself has made obnoxious to public policy and good morals, is in no position to ask the court to enforce its execution. We are unable to distinguish the difference, in principle, between a contract Amid aib initio, and one made so, after its execution, by the very party under whose provisions he seeks to secure its benefits. It must follow from the authorities and what we have said that the-third paragraph of answer, in so far as it seeks to avoid the allegations of the complaint relating to the sale and transfer of the real estate awarded to appellee, constitutes a complete bar; but said paragraph was not good as a complete defense to appellant’s cause of action, and it was error to overrule the demurrer thereto.
The third paragraph of answer purports to answer
The judgment is reversed, with directions to the court below to sustain appellant’s demurrer to the third paragraph of the answer, and for further pro* ceedings not inconsistent with this opinion.