104 Mo. App. 480 | Mo. Ct. App. | 1904
In 1901 the appellant was conducting a saloon in the town of Portageville, in New Madrid county, but in September of that year he sold his building, saloon, fixtures and good-will to the respondent, and according to the testimony of the latter and other witnesses, agreed to abstain from the saloon business in that town for three years, and to use his influence ti>
The evidence shows that at the time of the sale of Branham’s saloon and fixtures to Mitchell, the former agreed to sign a written contract stipulating that he would refrain from competing with Mitchell for the period stated; but that after he had been paid his money, he refused to sign such an agreement.
The very great weight of the evidence supports Mitchell’s version of the controversy, which, indeed, was not denied positively by Branham himself while on the witness stand.
Several defenses are relied on which will, be taken up and disposed of consecutively. One is, that the agreement was not to be performed within a year, and not having been, reduced to writing is, therefore, void. But it was entirely performed on the part of Mitchell, as the evidence shows, and his full performance suffices to take it out of the statute of frauds. Bless v. Jenkins, 129 Mo. 647.
It is said the sale of intoxicating liquors, or the dramshop business, is opposed to sound morals and public policy — is an occupation tolerated under restrictions .and penalties by the law, but discouraged; and that,
The illegality of the agreement is pressed from an-, other side, to-wit; from the premise that it was in restraint of trade and as such against public policy. There is no strength in this position; for a person may bind himself by a promise, for a valuable consideration, not to carry on a business in a designated locality, or within
"Without going into .this propostition, which rests far beyond the reach of controversy, we will cite some apposite authorites for the reader to consult if he desires. Long v. Towl, 42 Mo. 545; Pelz v. Eichele, 62 Mo. 171; Wiggins Ferry Co. v. Railroad, 73 Mo. 389; Mallinckrodt Chem. Works v. Nemnich, 83 Mo. App. 6; Gordon v. Mansfield, 84 Mo. App. 367; Whitney v. Slayton, 40 Maine 224; Hoyt v. Holly, 39 Conn. 326; Haywood v. Young, 2 Chitty 407; Davis v. Mason, 5 T. R. 118; McClurg’s appeal, 58 Pa. St. 51; Morse v. Morse, 103 Mass. 72; Leathercloth Co. v. Lorsont, L. R. 9 Eq. 395; Palmer v. Stebbins, 3 Pick. 188; and a case to which we call particular attention because it is so well considered, Kellogg v. Larkin, 56 Am. Dec. (Wis.) 164.
The contract in suit is said to have been nullified .by the inclusion of an arrangement for the continuance, in disregard of the statutes, of the dramshop business by Mitchell under Branham’s license until it expired. 'The evidence on this branch of the case consists of the statement of Mitchell on the witness stand that he continued the business under Branham’s license from September 17th, when he took possession, to November 4th, when the license expired, and that the license was a part of his purchase. The law declares that the license of a
Mitchell’s failure to procure a license is sought to be taken advantage of in another way: It was admitted that the saloon was conducted from September 17 to November 4 under Branham’s license, as Mitchell believed but, in point of law, without a license. Branham’s competition opened October 5, and from that date to November 4 was against Mitchell as an unlicensed dram-shop keeper. On these facts appellant’s counsel requested an instruction which the court refused, that the respondent could not recover damages for an injury done to his business by appellant’s competition during that interval. An instruction was given, over the objection of the appellant, that if the jury found the issues for the respondent, among other elements of damages, they should award whatever sum the evidence showed he had sustained from the falling off of sales from the date of the contract to the institution of this action — an instruction which authorized an award of damages for loss of profits during the period between October 5 and November 4, when respondent was without a license and was, of course, doing business in violation of law. We do not see how this ruling of the court can be upheld. Every sale that Mitchell made during that period was a criminal offense and it is a poor basis for damages that the sales made by a competitor meanwhile, prevented him from committing more offenses and realizing a profit by them. Our statutes provide that a dramshop keeper can not recover for any sale of liquor made on
In Fox v. Rogers, the defense preferred to a suit for building a drain into the defendant’s house, was that the work was done in contravention of a statute and in excess of the plaintiff’s license. This defense was overruled.
A like decision was given in Dowley v. Schiffer, an action on a contract to furnish electric lighting to the defendant’s house, and to equip it with wires. ■ Payment was resisted on the ground that overhead wires were
Perhaps the principle that divides the two classes of cases will he stated with sufficient precision for practical purposes, by saying that when the substance of a plaintiff’s cause of action, whether it sounds in contract or in tort, is the performance of some unlawful act, which must he established as a ground of recovery, a court will decline to relieve him; hut that redress will be granted, notwithstanding' his commission of an unlawful act, if that act is not of the essence of his case.
In Dowley v. Schiffer, the law was stated thus:
“The use of unlawful means by one of the parties in performing his obligation under a contract may prevent a recovery to which performance is essential; since in that case the party seeking to recover will himself he compelled to assert his own unlawful act; and he can not successfully invoke the intervention of courts of justice to aid him in securing the profits of his transgression. In such a ease the legal interdiction upon the act constituting the performance operates as a disability, and the party seeking to recover can not assert such performance in support of his claim for compensation. ’ ’
It was treated by the Supreme Court of Massachusetts in Gregg v. Wyman, as follows:
“A party can not he heard to allege his own unlawful act, and if such act he one of a series of facts necessary to support the plaintiff’s claim, then that claim must fail.
“The party who seeks redress in a court of justice must come with clean hands; an action which requires for its support the aid of an illegal act can not he maintained. No action, therefore, can be maintained on an illegal contract, or upon anything growing out of it. Whether a claim connected with an illegal transaction, can he maintained in a court of law, may he determined by the test whether the plaintiff must bring in the illegal transaction to aid him in making out his case.”
An objection was made to the sufficiency of the petition; but the reasons for that objection have been examined in discussing the points we have treated.
On another trial of this case the circuit court should be. sure to give a clearly worded instruction that it devolves on the respondent to make out his case by a preponderance of the testimony. The jury were not satisfactorily instructed on that proposition at the trial.
The judgment is reversed and the cause remanded.