Falk v. Ferd. Heim Brewing Co.

62 P. 716 | Kan. Ct. App. | 1900

The opinion of the court was delivered by

Mahan, P. J. :

From the record, it appears that the view the district judge took of the case was that, inasmuch as it appeared from the evidence that the building itself cost $800, and that all the money furnished at that particular time was put in the building, therefore there was a lawful part of the contract to be enforced. The evidence sustained the allegations of the petition, at least prima facie. It disclosed a deliberate arrangement on the part of the plaintiff brewing company to establish in the state of Kansas, in violation of law, a business for its own profit. It appeared that it bought and owned the fixtures, bar, etc., and necessary furnishings for a saloon. That the giving of the mortgage grew immediately out of and was connected with an illegal act, there is no question from the evidence. It was not founded upon any new consideration, but was a part of an entire arrangement. Chancellor Kent, in his Commentaries, volume 2, page 466, says : “If the contract grows immediately out of or is connected with an illegal or immoral act, a court of justice will not enforce it.” The supreme court of this state, in Wallach v. Wylie, as Sheriff, 28 Kan. 151, et seq., adopted this rule in substance. See, also, Korman v. Henry, 32 Kan. 49 and 343, 3 Pac. 764, 4 Pac. 262; Gerlach v. Skinner, 34 Kan. 86, 8 Pac. 257; McBratney v. Chandler, 22 Kan. 692. Upon the basis of these authorities, the court erred in sustaining the demurrer and directing a verdict for the plaintiff. There was sufficient evidence, at least, to take the case to the jury upon the issue framed.

The judgment is reversed and the case remanded with directions to award a new trial.