Phelps v. Manecke

Jun 18, 1906

Reporters:: , ,
Before:: Ellison

ELLISON, J.

Dеfendant gave to plaintiff his promissory note for three hundred and twenty-five dollars and upon refusal to pay it plaintiff brought the present action and recovered judgment in the trial court.

It is rather a remarkable case. It appears that defendant owned a saloon in the town of Belle, Maries county, and one Jake Weller, ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍OAvned a farm in that county. • They made a trade or exchange of the saloon for the farm. It seems prеparatory to the trade defend*142ant liberally mixed water with his stock of whiskey and. for that, and other reasons, Weller, as the lawyers say, wanted to rescind; but he himself expressed his desire rather more forcefully on the witness stаnd, by testifying that being drunk when he made the exchange he wanted to “rue back on the trade.” It became known in the town of Belle that Weller was dissatisfied with his bargain and wanted it undone. He spoke of his desire to this plaintiff, who, though not а lawyer, readily entered into an arrangement whereby, for one thousand dollars remuneration, he would establish the status quo between the parties; or, as he more intelligibly explained to Weller, ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍he would put him back on his farm and dеfendant back in his saloon.

It appears that this arrangement to “break up the trade” came to defеndant’s ears and he became alarmed for the safety of his profit in having traded water for land. It does not appear clearly just how plaintiff and defendant came together, nor is it clear that plaintiff took рart in having the story of his engagement with Weller to interfere with plaintiff’s affairs, come to the knowledge of the lаtter. At any rate plaintiff was not at all averse to the story reaching defendant, and, apparently, he did nоt sympathize with defendant’s alarm, for he added thereto somewhat by suggesting that he purposed having him “pulled” by the fеderal court for adulterating whiskey in violation of the revenue law. Defendant now became nervously soliсitous as to plaintiff’s getting into the affair and began making offers of money to him to stay out. He first offered twenty-eight dollars and pasture for some horses, which plaintiff rejected as “no inducement at all.” Defendant then sent for him and offered him two hundred and fifty dollars, which he rejected, and they separated. Again they met, and defendant offered him six hundred and twenty-five -dollars. He took this offer under advisement and con*143sidering that staying with Weller involved “the emрloyment of lawyers” and that he would have to “get up the evidence to break it up,” he concluded he “would not make any more out of it (Weller’s offer) than he (defendant) offered me, so I went back and told him I. would take him up at that.” But defendant did not have the ready money and plaintiff must have it. So it was finally arranged that defendant wоuld pay three hundred in cash and give his note (the one in suit) with a surety, for three hundred and twenty-five dollars. As just stated, defendant did not have any cash, and, as he states, having before his eyes a violated revenue law and a federаl court for ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍which and before which, he was to be “pulled,” he gave another party one hundred dollars for assisting him in borrowing the three hundred paid down to plaintiff. This short history of how and why plaintiff abandoned Weller and took up with thе other side is taken from plaintiff’s own testimony except where otherwise indicated. Plaintiff denies, however, that he made the suggestive and pursuasive • intimations about the revenue law and the federal court. And as we intend to lay our hand on the plaintiff, or rather, take the trial court’s hand off of the defendant, we will pass that by and only consider the case as made by the evidence in plaintiff’s behalf.

The idea urged by plaintiff in support of the judgment is that there was a valid legal consideration supporting the note in his giving up his bargain to serve Weller for a thоusand dollars. It is, however, a matter for serious consideration whether in the conduct of’ plaintiff and defendant in bringing about the abandonment of Weller (if the proposed service was legal) was not of sufficient turpitude tо condemn the plaintiff. If the law catches two in an evil transaction, it will frequently punish both, but it never lends the assistance of the courts to one of these to enforce the other’s promise. Not that the law favors the promisee more, or the promisor less, but it is so utterly indifferent between the *144two as to refuse to move its machinеry at the request of either. But we pass by that suggestion ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍to take up one made by defendant’s counsel upon whiсh we base our judgment.

Plaintiff was an outside party wholly without interest in the matters out of which a legal controversy might аrise between Weller and defendant and, according to his own statement, he was to take up Weller’s cаuse, employ lawyers and get up evidence at his own expense. His engagement, the abandonment of whiсh he relies upon for consideration to support the note, was clearly and plainly what the law calls maintenance, and was therefore unlawful. [Duke v. Harper, 66 Mo. 51; Gilbert v. Holmes, 64 Ill. 548; McGoon v. Ankeny, 11 Ill. 558, 560.] We considered such questions in a recent case in this court, pronouncing ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍acts of maintenance tobeunlawfulinthis State. [Breeden v. Ins. Co., 110 Mo. App. 312.] The abandonment of an unlawful enterprise though it would have been profitable, is not a valid consideration. It is against public pоlicy to permit one to demand a price for abstaining from an unlawful project or an evil deed. In such сase there can be no consideration; for the wrongdoer has not lost anything which he had any right to gain.

The demurrer offered by defendant’s counsel should have been sustained. The judgment will therefore be reversed.

The other judges concur.