78 Mo. App. 585 | Mo. Ct. App. | 1899
Lead Opinion
The petition states that plaintiff is a Missouri corporation, and was desirous of securing the adoption by the people of a constitutional amendment providing for a change of the seat of government to Sedalia, which was submitted to the voters of the state at a general election held on the third of November, 1896; that defendant was then chairman of a political organization in the city of St. Louis known as the “Democratic Oity Central Committee, with regular officers, consisting of a chairman, secretary, and treasurer,” and was soliciting contributions “to pay the legitimate expenses of the Democratic party at said election,” and represented “that if plaintiff would contribute money toward .the payment of the expenses of said party at said election, said committee would advertise Sedalia, and would in addition to the other work of the committee,” present to the voters reasons in favor of the adoption of the proposed constitutional amendment. The petition concludes, to wit: “Plaintiff further states that on the said twenty-eighth day of October, 1896, it having faith and confidence in the integrity" of the defendant and his representations aforesaid, through its agents and representatives, Edward Butler and Charles E. Yeater, gave him as a contribution to the Democratic City Central Committee, the sum of twelve hundred ($1,200) dollars, under the agreement that he would pay the same over to the proper officer of said Democratic City Central Committee, to be used by the said Democratic City Central Committee in defraying the proper and legitimate expenses of the said party during the campaign preceding the general election, so to be held on the third day of November, 1896, and to defray the expenses of advertising and presenting to the citizens of St. Louis, reasons, arguments and literature in favor of the proposed constitutional amendment
“Plaintiff further states that it made demand of defendant for said money on the twenty-third day of August, 1897, but that defendant refused to pay the same.”
Plaintiff prayed judgment for $1,200. The answer was a general denial. On the trial the plaintiff had judgment for $401.85, from which defendant appealed, and assigns for error the refusal of the court to direct a verdict in his favor on the pleadings and evidence.
The theory of this assignment is that there was no proof of the cause of action stated in the petition; that pleading states a specific contract and alleges its breach. The cause of action stated was the reception by defendant of $1,200, contributed by plaintiff, through two of its agents, to him as chairman of the Democratic City-Central Committee “under ihe agreement that he would pay the same over to the ggrojp&r officer of said committeeThese quoted and italicised words are taken from the above petition, where they are used
“Q. To whom was he (Brady) to distribute the $1,400?” “A. To what person?” «Q. Yes.” “A. He didn’t — the name of no person was suggested.” “Q. No name was suggested either, was there?” “A. No, sir, no name suggested except that he would advise with the ward committeemen and select as many persons as possible in, each ward so as to cover the precinct as nearly as possible in the distribution of the literature.” “Q. He was to give this money to different persons in the different wards?” “A. Yes, sir, that was right, that was the first suggestion made by Colonel Butler.” The foregoing testimony not only fails to support by the barest inference the alleged contract of defendant “to pay over the money to the proper officer of the committee,” but it clearly and distinctly shows by the admissions of plaintiff’s agent (Yeater) on cross-examination that defendant was to give the money in question "to different persons in different wards." In the light of this explicit admission by plaintiff’s representative in making the contract with defendant, there is not a scintilla of evidence in the record tending to prove the specific contract alleged in plaintiff’s petition. On the other hand, the evidence adduced by plaintiff' affirmatively discloses a contract with defendant, who was chairman of a political committee, to use the funds*592 placed in Ms hands in a method declared to be illegal by the positive language of the statute, supra. It is evident also that the jury did not misunderstand the nature of the agreement, as disclosed by plaintiff’s witnesses, between it and the defendant, for they gave him credit in their verdict for certain sums which certain ward workers testified he had paid over to them in .the interest of the capital removal. Where the evidence shows the illegal nature of a transaction which the pleadings or the terms of a written contract have covered with the veneer of legal formality, the party relying thereon is deprived of all right of recovery. Sumner v. Summers, 54 Mo. 340; Sprague v. Rooney, 104 Mo. 360; affirmed in Haggerty v. Ice Mfg. & Storage Co., 143 Mo. loc. cit. 247, 248; Griswold v. Waddington, 16 Johnson, 486; That a contract in violation of the requirements of a statute can neither be enforced, nor the money paid thereunder recovered, is the universal law. Downing v. Ringer, 7 Mo. side page 585, top page 292; Bick v. Seal, 45 Mo. App. 475 ; Connor v. Black, 119 Mo. 126. In the case of payments paid in furtherance of an illegal agreement, the courts leave the parties, if equally guilty, in the position which they placed themselves in endeavoring to evade or subvert the law, upon the maxim in pari delicto portior esl conditio defeivdentis el possidentis. In the case at bar all the parties to the transaction were upon the stand. The consensus of the evidence thus adduced disproves the contract averred in the petition and establishes that another, illegal in its nature, was made, which was to be consummated by the expenditure of the money placed in the hands of the defendant for that purpose. As there was no gradation in the participancy of the parties to this transaction, it follows that the law will not lend its aid to one rather than the other, but will leave them to the consequences of their own acts in attempted violation of the law governing contributions to political committees. We are unable to discover any good reason for remanding*593 this cause, it will, therefore, be reversed. Judge Bland concurs in this opinion. Judge Biggs thinks the case should be reversed and remanded. His views are expressed in a dissenting opinion.
Dissenting Opinion
DISSENTING OPINION BY JUDGE BIGGS.
I agree that the judgment ought to be reversed for the reason that the case was submitted and the recovery was had on a theory not warranted by the pleadings. The fifth instruction was drawn upon the theory that the money was paid to Brady as chairman of the Democratic City Central Committee, to be paid by him to the treasurer of the committee, and afterward used by the committee in the interest of the Democratic city ticket and the capital movement and the jury was told that Brady was not justified or protected in any other mode of disbursing the money and the judgment should be for the full amount. The fourth instruction proceeds upon the idea that the money was paid to Brady as an individual, and in that case the jury was instructed to return a verdict for the amount of the money which Brady had appropriated to his own use. Both instructions are right under the facts stated in each, but they present different and distinct rights of recovery. The legal obligations as to the mode and manner of the disposition of the fund under the two supposed agreements are essentially different. If the money was delivered to Brady as chairman of the committee, then under the corrupt practice act (Session Acts 1893, p. 162, sec. 118), it was his duty to pay it to the treasurer of the committee, and have it disbursed through him, and any other mode of disbursement was unlawful; whereas if the money was intrusted to him as an individual, no such duty was imposed. The jury gave Brady credit for the amounts paid by him to various ward workers, which shows that the jury determined the issues under the fourth instruction. This instruction was within the evidence, but it was outside of the
To entitle the plaintiff to recover under its pleadings, it was necessary that it should produce substantial evidence that the money was paid to Brady as chairman of the Democratic City Central Committee, upon an agreement either express or implied that he was to pay it to the treasurer of the committee, and that it was to be expended for the purposes for which it was donated in conformity with the requirements of the statute. In determining this question the court is required to draw every reasonable inference of fact