214 P. 893 | Or. | 1923
It appears from the record that the United States government had seized and condemned a cargo of arms and ammunition carried by a vessel violating the neutrality laws and had ad
“II.
“That prior to the date of said sale, plaintiffs and defendant entered into an agreement, whereby the said parties agreed that defendant should bid at said sale for and on behalf of said parties, each of said parties promising and agreeing’ to contribute 1/6 of any sum bid at said sale by defendant, not to exceed the sum o.f $30,000.00, the profits and expenses of said sale to be shared equally by the said parties.; that plaintiffs and each of them were then, and at all times hereinafter mentioned have been ready, willing and able to contribute one-sixth of any sum within the said limit; that in consideration of said agreement defendant was appointed, and agreed and consented to act for and on behalf of all of said parties at said sale.”
The complaint continued as follows:
“III.
‘ ‘ That thereafter def endant secretly and without the knowledge of plaintiffs, entered into an agreement with one W. Stokes Kirk, whereby the said Kirk, bidding at said sale on behalf of himself and defendant in equal shares, purchased the said property for the sum of $9,650.00; that plaintiffs upon learning of the said agreement between the said Kirk and the defendant and the purchase of the said property at said sale thereunder, tendered to defendant their proportionate shares of the sum paid by defendant for the said half interest in the said property.
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“That defendant refused the said tender and refused to set over to plaintiffs any share in the said property; that plaintiffs have demanded an accounting of said transaction from defendant, which has been refused and is still refused; that plaintiffs are informed and believe and therefore allege that*341 defendant has received as profits from said sale the sum of $25,000.00.”
and this is denied by the answer. The plaintiffs pray for a decree against the defendant that he be compelled to account to them for five-sixths of the profits derived by him from the transaction. ' Further affirmative matter in the answer, after averring the advertised sale of the property, contains the following averments:
“II.
“That defendant attended said sale for the purpose of bidding, and that the plaintiffs advised the defendant of their purpose individually or collectively to make bids at said sale; that there were present at said time and place a motley crew of rag and junk men, and that the plaintiffs were only five out of twenty or thirty in said aggregation, and that all of the members thereof announced their intention of bidding notwithstanding their financial inability to purchase the said articles, no deposit being required, and volunteered to refrain from bidding in the event the defendant would admit the plaintiffs and the remainder of said aggregation to share in any profits which might be derived from a resale; that the said offer to refrain from bidding constituted the consideration for the demand and the attempted agreement referred to in the Complaint herein; that at said sale W. Stokes Kirk was the successful bidder; that thereafter the defendant inquired of plaintiffs and the remainder of the aggregation referred to whether they desired to form a pool with him to acquire the said property from Kirk for a sum then and there stated, but that the plaintiffs and the remainder of said aggregation connected with the said plaintiffs declined, and that the transaction between the defendant and the said Kirk was subsequent to the said sale and subsequent to the said declination on the part of the plaintiffs and the accompanying aggregation referred to to enter therein. ”
“For reply to Paragraph II of defendant’s further separate answer and defense, plaintiffs admit that defendant attended said sale and that W. Stokes Kirk, bidding in conjunction with defendant, was a successful bidder at said sale and deny each and every other allegation contained in said paragraph and allege the facts to be as set forth in plaintiffs’ complaint and not otherwise.”
After the case was thus at issue, a trial was had at which the plaintiffs and their witnesses were present and testified and the defendant was not present, except by his counsel, and offered no testimony. The result was a decree dismissing the suit without allowing either party costs or disbursements against the other. The plaintiffs appealed. '
Substantially, the testimony for the plaintiffs discloses that two of them became aware of the coming sale of the property and examined it with a view of bidding for it. After some investigation, they took in, one by one, the three other plaintiffs and formed a partnership to which each agreed to advance $5,000 or $25,000 in all, to bid on the cargo up to that amount and if successful in the purchase, to dispose of the property and share equally in the gains or losses of the transaction. Thus the matter stood on the morning of the sale when and where were present the five plaintiffs and the defendant. Upon inquiry, they found that he had attended for the purpose of bidding on the property and, after a very brief negotiation, they took him also into the partnership on condition that he likewise would advance $5,000, making the total capital of the concern $30,000. This all took place within the hour before the
As affecting the pleaded status of the parties in relation to the property, we note the answer says “that at said sale, W. Stokes Kirk was the successful bidder.” The reply in response to that allegation reads thus:
“Plaintiffs admit that defendant attended said sale and that "W. Stokes Kirk, bidding in conjunction with the defendant, was the successful bidder at said sale. ’ ’
The answer nowhere intimates that Kirk was bidding in conjunction with the defendant: In Woolsey v. Draper, 103 Or. 103 (201 Pac. 730), Mr. Justice Rand wrote the following precept:
“The insertion into a pleading of a clause pretending to admit a fact not pleaded by the opposite party is not a proper way to plead, raises no issue, is not capable of being denied and should not be tolerated.”
The doctrine was followed in Loveland v. Warner, 103 Or. 638 (204 Pac. 622). Under this rule therefore, the italicized clause, “bidding in conjunction with the defendant” is of no effect, adds nothing to the reply and properly is disregarded. Consequently it stands admitted by the pleadings that Kirk was the successful bidder at the sale, that is to say, Kirk became the owner of the property. It follows that if the plaintiffs would have an accounting from the
Again, the plaintiffs allege an executory contract whereby each of them was to advance the sum of $5,000 to the partnership capital. They plead a covenant with the defendant with which they had themselves not complied. They essay to reap where they have not sown. They demand a gain from a venture into which they did not put a dollar. Before they can recover on any executory contract, they first must show that they themselves have performed the same so far as they could perform. Until then they cannot call upon the defendant to respond in damages or to render an account. .Their allegation of tender to the defendant is without proof of any kind. Neither do they keep the tender
The case is argued largely in the briefs for and against the theory advanced by the defendant that the testimony shows an unlawful combination of the parties for the purpose of chilling the bidding at the sale and preventing the property from bringing an adequate price. The trial judge adopted this theory and dismissed the suit. The testimony shows very strongly that the condemned cargo was worth at least $100,000. The combination began between two of the plaintiffs and they enlarged it, one by one, until, according to their story, it included six, Barde being the last addition. That they entered into a combination to bid at the sale is patent. In Kearney v. Taylor, 15 How. 494 (14 L. Ed. 787), it is said:
“There are some cases deriving their principles from the severe doctrines of Brexwell v. Christie, Cowp. 396, and Howard v. Castle, 6 T. R. 642, to be found in books of high authority in this country, that would carry us the length of avoiding this sale, simply on the ground of this association having been formed for the purpose of bidding off the premises, for the reason that all such associations tend to prevent competition, and thereby to a sacrifice of the property. (Citing authorities.) Later cases, however, have qualified this doctrine, by taking a more practical view of the subject and principles involved, and have placed it upon ground more advantageous to all persons interested in' the property, while at the same time affording all proper protection against combinations to prevent competition. (Citing authorities.)
“It is true that in every association formed to bid at the sale, and who appoint one of their number to bid in behalf of the company, there is an agreement, express or implied, that no other member will participate in the bidding; and hence, in one sense, it may*347 be said to have. tbe effect to prevent competition. Bnt it by no means necessarily follows that if the association had not been formed, and each member left to bid on his own account, that the competition at the sale would be as strong * and efficient as it would by reason of the joint bid for the benefit and upon the responsibility of all. * *
“We must therefore look beyond the mere fact of an association of persons formed for the purpose of bidding at this sale, as it may be not only unobjectionable, but oftentimes meritorious, if not necessary, and examine into the object and purposes of it; and if, upon such examination, it is found, that the object and purpose are, not to prevent competition, but to enable, or as an inducement to the persons composing it, to participate in the bidding’s, the sale should be upheld — otherwise if for the purpose of shutting out competition, and depressing the sale, so as to obtain the property at a sacrifice.
“Each case must depend upon its own circumstances; the courts are quite competent to inquire into them, and to ascertain and determine the true character of each.”
It is plain that in the instant case, the plaintiffs were not trying to encourage bidding or to increase competition so as to make the property bring a higher price. On the contrary, they were engaged in absorbing all opposition that appeared at all formidable. They drew the inference from the conduct of Barde and Kirk that the two of them had agreed to stifle bidding and allow the property to go to Kirk when Barde stopped bidding, as a result of the whispered conversation between them. Now, the plaintiffs seek the benefit of that unlawful compact when, in fact, they stood by, consenting to it.
Some of the precedents relied upon by the plaintiffs are here set down. McDonald v. Lund, 13 Wash. 412 (43 Pac. 348), had to do with a case where money
“It is the policy of the law not to aid the completion of an illegal contract; yet when that contract is at an end, the agent whose liability arises wholly by receiving the money for another’s use can have no pretense to retain it.”
In our judgment, the actions of the plaintiffs clearly indicate an effort to prevent the property from being sold at anywhere near its reasonable value. In McMullen v. Hoffman, 174 U. S. 639 (43 L. Ed.
“We have here nothing to do with a combination of interest which is open and avowed, which appears upon the face of the bid and which is therefore khown to all. Such a combination is frequently proper, if not essential, and, where no concealment is practiced and the fact is known, there may be no ground whatever for judging it to be in any manner improper.
“But in this case there is more even than concealment. There is the active fraud in the putting in of these, in substance, fictitious bids, in their different names, but in truth forming no competitive bids, and put in for the purpose already stated. It is not too much to say that the most perfect good faith is called for on the part of bidders at these public lettings, so far as concerns their position relating to the bids put in by them or in their interest. The*353 making of fictitious bids under the circumstances detailed herein is in its essence an illegal and most improper act; indeed, it is a plain fraud, perpetrated in the effort to obtain the desired result.”
In the instant case, the bids of Egerer, Rosenkrantz and Barde were prima facie evidence of legitimate competition; but were in fact collusive and calculated to deceive others. The whispered transaction between Barde and Kirk, upon which the plaintiffs rely, plainly had the effect of stopping the bidding at a ridiculously low price for the property sold. As stated, we have here, only the testimony on behalf of the plaintiffs. There was none offered for the defendant and it is said that he was not present at the trial. In Jackson v. Baker, 48 Or. 155 (85 Pac. 512), Mr. Chief Justice Bean, delivering the opinion wrote thus:
“If the illegality' appear from the complaint or the plaintiff’s case, the court will, at any stage of the proceedings, dismiss the action, although such illegality is not pleaded as a defense, or insisted upon by the parties, and may have been expressly waived by them. It is an objection which the court itself is bound to raise in the due administration of justice, regardless of the wishes of the parties.”
There are numerous authorities cited in support of this doctrine and it is the settled rule in this state. The case presented is where the government was in the exercise of its function in selling condemned property. It was to the interest of the government, as a matter of public policy, that the property should bring as much as possible at the sale. The whole course of conduct on the part of the plaintiffs, Barde and Kirk, as narrated in the testimony, indicates a settled purpose to stifle competition, to
The plaintiffs further contend that they should receive consideration at the hands of a court of conscience because they are not in pari delicto. We cannot give heed to this contention. The delicts of the plaintiffs and of the defendant are identical and patterned on the same model. According to their own showing, the only distinction between them is that he appropriated the profits and they received nothing. This may heighten their disappointment but does not lessen their blame. There is presented a clear case of in pari delicto from which equity will not extricate the plaintiffs.
The suit of the plaintiffs must fail for these reasons:
1. They do not prove any contractual relation between themselves and Kirk, the admitted purchaser and hence owner of the property.
2. They do not show performance or tender of performance on their part of the executory contract between themselves and the defendant on which they rely.
3. The executory contract upon which their whole case depends is shown to be contrary to public policy.
The decree of the Circuit Court is affirmed, with costs and disbursements of this court in favor of the defendant. Affirmed.