185 Ky. 734 | Ky. Ct. App. | 1919
Affirming the judgment in each action.
These actions are between the same parties and involve tbe same questions, and are therefore beard and determined together.
A general demurrer was sustained by tbe trial court to tbe petition, as amended, in each action, and tbe plaintiff having declined to plead further, tbe actions were dismissed, and from tbe judgments, these appeals aré prosecuted. The only question before us, is whether tbe petition as amended in each case states a cause of action, in favor of tbe plaintiff against tbe defendant.
Tbe plaintiff, appellant - here, by tbe petition and amendments to it, in tbe first action, in substance, states, that, prior to tbe month of June, 1911, be and tbe defendant, appellee here, N. Ford Brent, entered into a contract, by tbe terms of which, be agreed to sell to tbe defendant a large quantity of blue grass seed, to be de7 livered to him on the first day of August, 1911; that, at tbe time be agreed to sell tbe blue grass seed, be did not own any such seed, and this fact was known to tbe defendant, and that shortly thereafter, be ascertained that it would be impossible for him to buy enough seed to comply with bis contract of sale with defendant, and that the price of blue grass seed rapidly advanced after be bad made tbe contract,' and that on or about tbe — day of June, 1911, tbe defendant demanded and exacted of him', for bis inability to comply with tbe contract, tbe sum of $11,000.00, of which sum, be, on that date, paid to defendant, tbe Sum of $5,000.00 in money, and for tbe remaining $6,000.00, be executed bis promissory note; payable to tbe order of defendant, within twelve months after date, at tbe Clark County National Bank, and thereafter, on the 29th day of August, 1912, be renewed tbe note, by executing, to defendant, a note for $6,450.00, due in twelve months, and payable to tbe order of defendant, at the said bank, and that, thereafter, and before tbe maturity of the note, tbe defendant, for a valuable consid-? eration, transferred and assigned tbe note to tbe Deposit Bank of Paris, and since, be has been required to pay tbe full amount of tbe note to tbe bank to which it was assigned; that there was no valid consideration for either of the notes; that since tbe latter note was executed, he has learned and ayers it to be a fact, that “ either prior
The petition and amendments in the second action sought the recovery of the $5,000.00 paid to defendant in settlement of the contract, in June, 1911, and the allegations upon which the cause of action is based, are substantially the same, as those above stated, as being the averments of the petition and its amendments, in the first action except in the petition and its amendments in the last mentioned action, it is averred by the plaintiff, that when he ascertained, that he could not comply with the contract, he notified the defendant and then in settlement of the damages paid the $5,000.00 in money, and executed the note.
It will be observed, that the appellant relies, for his cause of action, upon two different statements of facts under and because of which he paid, to the appellee, the money and executed the note, in settlement of the breach of his contract, which he now seeks to recover. These statements of facts, which he alleges in the alternative, differ radically, as we view them, in their legal effects, when considered with the other facts alleged. He alleges, that the state of case presented by one of the statements of facts is true, but he does not know, which state of case is true. If one of the alternative statements- of alleged facts presents a state of case, in which there was no illegality, either, in the contract or in the settlement made of the contract, and nothing therein contrary to law or public policy, it is very clear, that the petitions as amended do not set forth a cause of action, in favor of appellant, since no one could know, from the pleading, which alternative statement of facts alleged, were the facts of the transaction, as it might as well be considered, that the transaction took place according to the state of facts, under which there was no illegality, either in the contract, or settlement of it, and under which the appellee was entitled to receive the money and note, as'that the contract and settlement were made under the other alleged state of case, and applying the ancient and well established rule, that the pleading must be construed most strongly against the pleader, it would have to bo assumed, that the state of facts alleged, which gives the pleader no cause of complaint, was the true state of case, rather than the other, and the one, which the pleader intended to set forth. There is no state of case, where one
The appellant seeks to recover of the appellee upon the ground, that he was under no legal nor moral obligation to pay the money, as damages for the breach of the contract, and that it was paid without legal consideration, and in good conscience, the appellee ought not to retain it, in that, the appellee was a member of an illegal combination in restraint of trade, created for the purpose of suppressing competition in the trade of buying and selling blue grass, seed, and fixing the price of same, and for that reason, had no legal nor moral right to receive the money or to retain it, and that when appellant paid the money and executed the note, he did it in ignorance of the fact, that appellee was a member of the illegal combination, and intended to place the seed, which was to be delivered under the contract, if it had been performed, into, or for the benefit of the combination, and in furtherance of its purposes, and that he would not have paid the money, nor executed the note, if he had known the circumstances. ' It will be observed, however,, that these actions are not defenses to the enforcement of a contract, illegal, because in restraint of trade, nor is any contract sought to be enforced, but, they are actions to recover money paid under an executed contract. Whether a party can have relief from the,results of a contract, made in restraint of trade, after it has been
Taking one of the alternatives, alleged, the petition as amended, avers, that previous to the time of the creation of the illegal combination by appellee, Hutchcraft, and others, the appellant and' appellee .entered into a contract, under which appellant sold and agreed to deliver the blue grass seed to appellee, on the first day of August, but a month before the date fixed for the performance of the contract, the appellee, chose not to perform the contract, as agreed upon, and confessed the breach long before he was, by its terms, required to perform it, and agreed with appellee as to the amount of damages, and paid same, a part in money and the remainder, by the execution of his note. It will be observed, that this contract is not such a one as is declared by section 3918, Ky. Stats., to be void. The contracts, which are by that statute declared to be void, are contracts between persons and corporations and associations by which, pools, trusts, agreements, confederations and understandings are created for the purpose of regulating, controlling or fixing the prices of property,’ or fixing or limiting the amount of any commodity, to be bought, sold or produced. Section 3918, supra, in addition to declaring such contracts to be void, provides, that the existence of such an illegal agreement shall be a defénse by the purchasers for the price of any property or article from any individual, firm, company, or corporation, transacting business contrary to the provisions of chapter 101, Ky. Stats. The common law, applying to contracts in restraint of trade, is however, in force in this state. Gray v. Brent, 166 Ky. 834. The contráct between appellant and appellee, not being one of those to which the statutes above named apply, it is controlled by the principles of the common law. There can be no doubt, that in this state, a contract made with an illegal combination or association of persons, in restraint of trade, will not be enforced, when the enforcement would be in furtherance of the illegal purposes of the combination. Brent v. Gay, 149 Ky. 615; Arctic Ice Co. v. Franklin Electric & Ice Co., 145 Ky. 32; Clemmons v.
As to what conclusion would be reached, if the alternative statement, that the contract between appellant and appellee was entered into after the creation of the illegal combination, and in furtherance of the unlawful scheme of the combination was the state of facts, is not necessary to be decided, after the conclusion reached as to the right of the parties, if the other alternative statement of facts, is the true one. The' judgments are therefore affirmed, in each of the actions.