152 Mo. App. 147 | Mo. Ct. App. | 1910
Plaintiff, publisher of the St. Louis Republic, a newspaper of general circulation, brought suit against defendants to- recover the contract price of advertisements it inserted for defendants in two Sunday issues of the newspaper. The petition is in two counts, each advertisement being-pleaded as a separate cause of action. A jury was waived and the court, after hearing the evidence, rendered judgment for plaintiff on both counts. Defendants appealed and contend that the contracts for the advertising were void because they provided for the violation of the statute prohibiting labor on Sunday (sec. 2240, R. S. 1899). Plaintiff argues that the contract's did not require nor contemplate a violation of the statute, and, further that the issue of the validity of the contracts is not in the case since it was not raised in the pleadings.
It is alleged in the first count of the petition, “that heretofore and on or about the 8th day of April, 1908, the defendants engaged space in said St. Louis Republic for the insertion of an advertisement designed to acquaint the public with the character of the business in which the defendants were engaged; that the plaintiff accepted said offer to insert said advertisement, and in pursuance of said employment did on the 12th day of April, 1908, insert in the St. Louis Republic a large display advertisement setting forth the defendants’ business in such manner and in such language as defendants desired, and as instructed by defendants.” And in the second count, “that hereto
Defendants demurred to each count on the ground that it did not state facts sufficient to constitute a cause of action and on the overruling of the demurrer answered with a general traverse.
The evidence of plaintiff shows that two orders were received from defendants for advertising in the issues of the newspaper published respectively on the 12th and 19th of April, 1908 (Sundays), and that the advertisements were inserted in all of the editions issued on those dates. It was the custom of plaintiff to issue four editions of the Sunday newspaper. The first edition was issued on the morning, of the preceding Friday; the second went to press at six o’clock p. m. on Saturday; the third and fourth were the fast mail and St. Louis editions and went to press early Sunday morning. No Sunday labor was expended on the first two editions but on the last two the press, mailing and delivery work were performed on Sunday. This method of doing business was pursued on the dates under consideration.
Section 2240, Revised Statutes 1899, provides: “Every person who shall either labor himself, or compels or permits his apprentice or servant, or any other person under his charge or control, to labor or perform any work other than the household offices of daily
It will be noted that the facts considered by the Supreme Court as of vital importance differ from those in the case in hand. • Here the contracts in requiring the advertisements to be inserted in all editions expressly provided for the doing .of labor on Sunday. We shall assume the advertiser knew that the later editions were printed and issued on Sunday and that both parties to the contract intended that the usual method of business would be pursued. In the performance of the contract as the parties clearly intended it should be performed, plaintiff was no more at liberty to omit the advertisements from the last two editions than it would have been to abandon those editions. It is idle to say no violation of the law' was-intended. The evidence will admit of no other conclusion than that the parties intended and stipulated for the performance of labor on .Sunday in violation of the statute. The contracts were void and are non-enforceable. [Handy v. Publishing Co., 42 N. W. 872.]
Passing to the question of pleading, the general rule is well stated in the following excerpt from the opinion of Thompson, J., in St. Louis Agl. & Mch. Ass’n v. Delano, 37 Mo. App. 284 (approved by the Supreme Court, 108 Mo. 217): “ Undoubtedly, if the contract, as described in the petition, directly involved the doing of something prohibited by law, the petition fails to state a cause of action, and this objection is available at any time, and may be made for the first time in an appellate court. But, if the petition states, a contract valid on its face, or valid as therein described, but which may nevertheless be invalid by rea
The rule thus expressed applies in cases where no question of public policy or morals is involved but it does not obtain where the contract provides for the commission of an act in violation of the criminal law. “An agreement to do an unlawful act cannot be supported at law or in equity and no right of action can spring out of it. It is absolutely void and whenever and by whatever means it appears beyond question to the court that the contract on which the cause asserted is based, is of such character, the court will repudiate it as a thing utterly void.” [Funding & Foundry Co. v. Heskett, 125 Mo. App. l. c. 539.] Whether or not the illegality of the contracts appears on the face of the petition, we think is a question that may be raised at any stage of the action. The courts will not lend their aid to the enforcement of contracts for the violation of criminal laws and whenever it develops in the course of procedure that the action is predi
Plaintiff has no cause of action and should have suffered defeat in the circuit court.
The judgment is reversed.