195 Mo. 693 | Mo. | 1906
— This is a suit to recover the sum of $6,000 which the plaintiff avers was obtained from him by defendants Boatright and others by means of a fraudulent scheme in which they .were aided and abetted by the defendants the Exchange Bank and Stewart its cashier.
The evidence shows that the plaintiff was enticed from his home in Oklahoma by the allurement of a scheme in which he was made to believe he would assist his tempters in obtaining money from other persons by means of inducing them to bet on a foot race to come off at Webb City, which race was to be so fraudulently conducted as to make it sure the other persons would lose. Plaintiff yielded to the temptation, went to Webb City, put up his money and lost, and then and there discovered that the supposed victims, in the defrauding of whomhe was going to assist, were partners with his tempters in an organized gang of cheating gamesters; that this gang had been operating in this maner at Webb City for a considerable time, had victimized others in the same way, and that the band and its officials had knowledge of the conduct of these men, connived at' their nefarious schemes and assisted them in it, to the extent, at least-, of allowing the bank to be used to give the appearance of respectability and responsibility to Boatright and the other members of the gang. The trial resulted in a judgment against Boatright and his associates, and also against the bank and its cashier Stewart who alone have appealed and who are presumably the only ones out of whom the amount of the judg - ment could be realized.
In that view of the question it becomes proper for us to state a little more fully than we have above stated the facts which the evidence in this case discloses.
The tempter came to the plaintiff on Friday and found him at first reluctant to take part in the fraudulent scheme, but the plaintiff, after holding the proposal in the balances, between an inclination to do right and a temptation to do wrong, until the following Monday morning, yielded and went to Webb City armed with his letter of credit.
They arrived in Joplin early in the morning and after breakfast at the hotel Fisher went with plaintiff to the park lying between Joplin and Webb City where Wasser with Boatright met them. Boatright told the plaintiff the same story that Wasser had told him. Boatright gave plaintiff $2,650 and instructed him to go the Exchange Bank and deposit it, and show his letter of credit to the bank cashier, and then to go over to a barroom just across the street. Fisher went with plaintiff to point out to him the bank; plaintiff depos
The evidence shows that this Buckfoot gang had been engaged in practices of this kind for years, and this bank and its cashier had allowed it to be used to the extent at least that it was used in this instance, giving the gang, to strangers, the appearance of being backed by a respectable financial institution. The testimony is quite voluminous in its history of these nefarious practices running through several years before this plaintiff was victimized and it tends to show that in all the cases the defendant bank and its officers had
One of the cases growing out of these practices was tried in the U. S. Cir. Ct. S. W. D. of Missouri, where the evidence on this point was practically the same as in the case before us. [Wright v. Stewart, 130 Fed. 905.] In that case Judge Phillips, in a summary of the evidence, shows the conduct of this gang for years in such a light as to make it a matter of astonishment that it could be tolerated for so long a period in a civilized community.
Coming back now to the law question in the case and considering it in its application to the particular facts we are dealing with, does public policy require us to turn this plaintiff away because he was, in the single transaction in question, as guilty as the men who defrauded him? Will it contravene good morals or degrade the courts if we listen to this plaintiff with his confession of guilty purpose and if, notwithstanding his guilt, we give judgment in his favor against this gang of bad men who had been preying upon the community for years and who by playing upon this man’s cupidity had tempted him beyond his power to resist? Will we promote good morals to say to this gang and their friends and abettors, you have so debauched and degraded your victim that the law will not touch him or hear his complaint, therefore you may go free, keep what you took from him, and look out for another victim?
Before answering these questions we ought to consider the spirit rather than the letter of the law, and keep in view the purpose it was designed to accomplish. Whilst the principles on which this law is founded are never to be violated and the purpose of the law is never to he defeated, yet, in its application to the facts of a
In Kitchen v. Greenabaum, 61 Mo. 110, the plaintiff owned a lottery ticket which had drawn a prize of $600, a fact known to defendant, but unknown to plaintiff ; defendant deceived the plaintiff by telling him his ticket had not drawn that prize, and having induced the plaintiff to believe that his ticket was of little if any value, bought it of him for $5, and collected the $600 prize. The court held that the plaintiff could not recover because he was guilty himself of violating the law in buying the lottery ticket. In the opinion, after quoting the maxim, in pari delicto, potior est conditio defen dentis et possidentis, as containing the law of the case, the court, per Sherwood, J., said that the maxim was not of universal application, and as an example of the exceptions he said: “Where the parties to the transaction, although concurring in the illegal act, are regarded as not equally guilty, in consequence of fraud, oppression, imposition or hardship, practiced by one party upon the other, thereby obtaining an unconscionable advantage. Under such circumstances, courts of equity have not hesitated to interfere in behalf of the le'ss guilty party, and against the chief mover in the unlawful enterprise. ’ ’ The writer of that opinion then proceeds to say arguendo that the exceptions do not apply to a case involving moral turpitude, but only to .an act malum proMbitum.
In Green v. Corrigan, 87 Mo. 359, plaintiff claiming to have been a partner of defendant in a certain contract with a waterworks company under which the works were built, sued to recover his share of the profits ; it turned out in the evidence that the plaintiff was the attorney of the waterworks company, and was intrusted by his client to fix the price to be agreed on for
What was said in the opinion in Kitchen v. Greenabaum, correctly expressed the law of that case, but what was there said in reference to the distinction between a transaction that was only malum prohibitum and one that was malum in se was not necessary to the decision because there was no question of that kind in the case.
In Green v. Corrigan which, as we have seen, involved a transaction malum in se and in which the defendant was allowed to plead the illegel contract and escape liability on the ground that the plaintiff was more guilty than he, the decision in Kitchen v. Greenabaum was referred to and approved; evidently, however, what was said in the former case apparently limiting' the exception to the rule to acts mala prohibita was regarded as obiter.
There are other decisions of this court on this subject cited in the briefs (Poston v. Balch, 69 Mo. 115; Williamson v. Baley, 78 Mo. 636; Sprague v. Rooney, 104 Mo. 358; Bell v. Campbell, 123 Mo. 1; Haggerty v. Storage Co., 143 Mo. 247); but it would render this opinion too long to discuss them. In all of those decisions this court has treated the law of this subject on the principle that it is designed to promote public morals and the public good. Courts treat the less flexible Statute of Frauds as designed to prevent fraud and refuse to apply it when to do so would promote fraud. So with this rule of law; it should never be applied when to do so would be detrimental to public morals.
This is the view of the most distinguished law-writers. In 1 Story’s Eq. Jur. (13 Ed.), sec. 300; it is said: “And indeed in cases where both parties are in delicto,
In 2 Pomeroy’s Eq. Jur. (3 Ed.), sec. 940, after stating the general rule that no action arises, in law or in equity, from an illegal contract, the author says: “The rule has sometimes been laid down as though it were equally universal, that where the parties are in pari delicto, no affirmative relief of any kind will be given to one against the other. This doctrine, though true in the main, is subject to limitations and exceptions which it is the special object of the present inquiry to determine.” Then in section 942 he says: “Lastly, when the contract is illegal, so that both parties are to some extent involved in the illegality — in some degree affected with the unlawful taint — but are not in pari delicto — that is, both have not, with the same knowledge, willingness and wrongful intent, engaged in the transaction, or the undertakings of each are not equally blameworthy . ■ .' . Such an unequality of condition exists so that relief may be given to the more innocent party in two distinct classes of cases: 1. It exists where the contract is intrinsically illegal, and is of such a nature thatthe undertakings or stipulations of each, if considered by themselves alone, would show the parties equally in fault, but there are collateral and incidental circumstances attending the transaction, and
If the case at bar disclosed but one transaction, if we should shut our eyes to the other transactions of like character that distinguished the history of this Buckfoot gang, if our whole attention was confined to the scheme entered into by the plaintiff with Wasser and Fisher in Oklahoma and the denouement at Webb City, we could not say that one was less guilty than the other; it was a scheme of dishonest purpose and there is no justification or palliation of it, and if there was nothing else in the case to make the offense of one more enormous than, the other we would not listen for a moment to the plaintiff’s prayer for relief, and if we do listen to him and grant him what he asks it it not through any consideration of wrongs suffered by him-but in tender consideration for the welfare of that community whose laws have been defied, and whose public morals have been shocked by this gang of bad men and to bring them to the bar of justice.
The learned law-writer whose text we have last above quoted, in section 941, says: “To the foregoing rules there is an important limitation. Even where the contracting parties are in pari delicto, the courts may interfere from motives of public policy. Whenever public policy is considered as advanced by allowing either party to sue for relief against the transaction, then relief is given to him. ’ ’ In the case before us we hold that public policy is advanced by allowing the plaintiff to recover the money of which he was defrauded.
II. There is no evidence that Boatright or any of his gang divided the money obtained from the plaintiff with bank or its officers. If such was the fact it would in the very nature of the case be out of the power of the plaintiff to prove it. But the evidence tends to show that the officers of the bank knew the business
We attach no importance to the fact that the cashier assured the plaintiff that Boatright and his associates were honorable men; because before the plaintiff went to the bank he knew from the transaction he himself had had with these men and the scheme they had entered into with him that they were dishonest men, and therefore the banker could only enlighten him as to their financial ability, unless purchance his inquiry was to learn if they possessed that quality which the learned counsel for appellant in their brief designates as “honor among thieves, ” a quality which the law does not recognize. It is not, therefore, on the theory the plaintiff trusted in the assurance given him by the cashier that these men were worthy of confidence, but because of the actual aid the bank, with knowledge of the facts, rendered this gang in fleecing the plaintiff.
III. There were a number of other similar transactions that had previously occurred in which the evidence tended to show that the bank allowed itself to be used to aid these men and of which it was notified by the victims as soon as they realized the fraud, which unfortunately for them, as it was also for this victim, owing to the expedition with which the checks had been forwarded by the bank for collection, was just too late to stop payment of the checks. It is urged for appellants that the introduction of evidence relating to other previous transactions of like character was erroneous.
Some of the other similar transactions shown in the evidence occurred after the one in question in this case, and it was insisted that because they were of subsequent occurrence it was error to receive the evidence. There is some plausibility in that objection, but the evidence as affecting the issues in this case is not to be condemned as illegal by reason of what this count said in State v. Boatright, 182 Mo. 33, on which appellant relies. In that case Boatright, Ellis and Brumley, three of the gang, together with Stewart, the cashier of the bank, were indicted for grand larceny; a severance and change of venue were granted, Boat-right, Ellis and Brumley’s case was sent to Lawrence county, and Stewart’s to Barton county. The three former were convicted and sentenced to a term in the penitentiary and the cause came here on their appeal. The evidence showed that the injured man in that case had voluntarily deposited the money in the bank. This court said: “The first and most serious difficulty we encounter on this record is whether there was any evidence of a taking and asportation by these three defendants of the money alleged to have been deposited by Griffith with Stewart, or the bank of which he was cashier.” Then the court said that since Griffith voluntarily deposited the money in the bank there was no trespass and that there was no evidence that the bank’s possession was changed by turning the money over to these three defendants. So it was as bearing on the question of the taking and carrying away by the three
IV. There is a good deal of discussion in the briefs as to the name to be given to the cause of action stated in the petition, whether we should call it a suit under section 3424, Revised Statutes 1899, to recover money lost in gambling, or one at common law for money obtained through fraud and deceit, or money obtained by defendants in the perpetration of a crime under section 2390, Revised Statutes 1899.
The petition states in substance that the defendants Boatright and others had, prior to the grievance complained of, conspired to have what it calls fake foot races run at Webb City on which strangers were enticed to bet and that the races were so fixed in advance
If the petition was intended to state a cause of action under section 3424 as for money lost at gambling, there is a good deal more of it than necessary. Fraud or unfairness in the game is not essential to the right of action given by that statute; and on the other hand, if there was no such statute the petition states a right of action at common law, that is, that defendants Boat-right and others obtained the plaintiff’s money by a fraudulent scheme in which they were assisted by the bank and its cashier Stewart. That is what the petition means.
Y. Appellants contend that since the case was submitted to the jury on the theory that it was. an action for fraud and deceit, the bank and its cashier cannot be held on the evidence tending to show that they represented to the plhintiff that Boatright and his associates were honorable men and worthy of trust, because they say the plaintiff knew to the contrary, and therefore could not have been misled thereby to his disadvantage.
We have already said that we attach no importance to that evidence, and it is not on that theory that we hold appellants liable, but because the evidence tends to show that they lent their influence and gave material
VI. Appellants complain that the instructions given at the request of the plaintiff assume that whatever defendant Stewart, the cashier, did, rendered not only himself hut the hank also liable.
' The instructions are to the effect that, if the plaintiff was defrauded, in the manner hereinbefore indicated, by Boatright and the others, and the cashier of the bank knew their scheme and assisted them in the manner indicated to operate it, he and the hank were both liable. There is nothing wrong in the instructions in that respect. The aid given, according to the evidence, was the aid of the hank; it was hanking business, first receiving the money which Boatright gave plaintiff with which to open the account, then cashing the checks covering not only that money but also $6,000' of plaintiff’s money besides, and rushing the checks off for quick collection knowing all the while, as the evidence tended to show and as the instructions required the jury to believe before they could hold appellants liable, that plaintiff was putting his money into the hands of men who were deceiving him. In that matter defendant Stewart acted ex officio, he was pro hac vice the bank, and whilst he cannot take refuge in the corporation to avoid his own personal liability, yet his act was the act of the bank, and it, too, is liable. [National Bank v. Graham, 100 U. S. 699.] We are not now dealing with a hank where there are innocent stockholders to suffer; this hank was owned and managed by the three Stew-arts, two brothers and a cousin, and if the plaintiff’s testimony is true they all had knowledge of the Buck-foot gang and their practices.
We find no error in tbe record. Tbe judgment is affirmed.