46 Neb. 577 | Neb. | 1895
This action was brought by the plaintiff in error, a partnership firm engaged in the manufacture of beer, to.recover of defendant the sum of $707.06, the price of certain beer alleged to have been furnished by plaintiff to defendant in the month of June, 1889. By way of counter-claim the defendant alleged that the beer was furnished him by plaintiff under a written agreement which required that the plaintiff should furnish the license necessary under the laws of Nebraska; .that plaintiff had neglected to provide this license, and that in consequence of such neglect the defendant had been required to pay the sum of $1,000 for such license. By reply the plaintiff averred that if the defendant had taken out a license it was to enable him to sell vinous and spirituous liquors and not to enable him to perform his contract with the plaintiff. There was also in the reply this language: “The plaintiff further alleges that there is and has been since long before September 1, 1888 [the date of a written contract between plaintiff and defendant], a usage and custom existing and prevailing among brewing companies generally, and particularly in the state of
From the fact that the plaintiff brought suit for the price-of the beer agreed upon between himself and the defendant, it is clear that the defendant was not a mere agent for the sale of the plaintiff’s beer. The petition was framed upon the theory that plaintiff had sold the defendant the-beer for which suit was brought, though the use of the-word “sale,” or any equivalent term, was avoided. It is equally clear that as a retail vendor of liquor the defendant was by section 25, chapter 50, Compiled Statutes, required
The plaintiff has cited only one adjudged case which is directly in point, and as the principle upon which that case proceeds must be far-reaching in its effects, the extent of its recognition, as well as its soundness, will now be considered at some length. The case referred to is Manchester & L. R. Co. v. Concord R. Co., 20 Atl. Rep. [N. H.], 383, in which there is quoted with approval the following language found in 2 Morawetz, Private Corporations, section 721: “If an agreement is legally void and unenforceable by reason of some statutory or common law prohibition, either party to the agreement who has received anything from the other party, and has failed to perform the agreement on his part, must account to the latter for what has been so received. Under these circumstances, the •courts will grant relief irrespective of the invalid agreement, unless it involves some positive immorality or there are other reasons of public policy why the courts should refuse to grant any relief in the case. * * * These
It was held in White v. Franklin Bank, 22 Pick. [Mass.], 181, that a suit could be maintained upon an entry in a deposit book made by defendant’s cashier by which, in effect, the bank became bound to pay at a future time the amount of plaintiff’s deposit, because the statute of Massachusetts prohibited banks from assuming such liability. In the opinion we find the following language: “The second objection, and that on which the defendant’s counsel principally rely, proceeds on the admission that the contract is illegal; and they insist that where money has- been paid by one of two parties to the other on an illegal contract, both being participes criminis, no action can be maintained to recover it back. The rule of law is laid down by Lord Kenyon in Howson v. Hancock, 8 T. R. [Eng.], 577, and in other cases. This rule may be correctly stated in respect to contracts involving any moral turpitude, but when the contract is merely malum prohibitum, the rule must be taken with some qualifications and exceptions, without which it cannot be reconciled with many decided cases. The rule as stated by Comyn, in his treatise on Contracts, will reconcile most of the cases which are apparently conflicting. When money has been paid upon an illegal contract, it is a general rule, that if the contract be executed, and both parties are in pari delicto, neither of them can recover from the other the money so paid ; but if the contract continues executory, and the party paying the money be desirous of rescinding it, he may do so, and recover back his deposit by action of indebitatus assumpsit
The action in Bill v. Inhabitants of Wareham, 7 Met. [Mass.], 438, was to recover back the sum of $500 paid by the plaintiff to the town of Wareham for the privilege of taking oysters within its limits. The power of the town to grant the privilege was denied by the statute, and, upon the refusal of the town to allow the privilege paid for, the suit was brought as indicated. Chief Justice Shaw, in delivering the opinion of the court, said: “ In regard to the sum of five hundred dollars, as it appears that was received by the treasurer and went to the use of the town, and was so received in advance, upon a consideration which has
In Episcopal Charitable Society v. Episcopal Church in Dedham, 1 Pick. [Mass.], 371, a note had been given by the rector and wardens of the church upon request of the -church society, which money had been not only borrowed for, but had been used by, the church society, and it was held that such society was bound to pay the amount so borrowed, even though there existed no direct legal authority in the rector and wardens to bind the church. As will be seen by the title of this case it was an action by the lender of the money to recover the amount loaned, hence the principle laid down by Mr. Morawetz, even if abstractly correct, was not applicable as it might have been if the rector and wardens after having paid the note had sued the church society to recover the amount so paid.
The syllabus in Whitney v. Peay, 24 Ark., 22, begins with the statement: “The state issued bonds for the use •of the Real Estate Bank, the bonds being prohibited by law from being sold for less than the par value thereof; ” but this proposition cuts no special figure in the case, for these bonds having been pledged as security for a loan, the sole questions determined were as to the rights' and liabilities of the original pledgee and his assignee of the pledge and of the assignee of such assignee among themselves as to the respective loans on the property pledged. The court held that the bonds must be returned to the original pledgor upon payment of the amount to secure which originally such pledge was made, notwithstanding the fact that by subsequent pledges of the bonds a loan of a larger sum had been effected.
The recovery of judgment in Philadelphia Loan Co. v. Towner, 13 Conn., 248, was for an amount loaned in Pennsylvania. It was held in this case that the laws of Pennsylvania should govern, and that as the charter of plaintiff
In Foulke v. San Diego & G. S. P. R. Co., 51 Cal., 365, the opinion was very brief and was correctly summarized in this language of the syllabus: “The provision in the act concerning railroad corporations that 'no contract shall be binding on the company unless made in writing/ refers only to contracts wholly executory; but the action against the corporation on such verbal executory contracts must be brought upon an implied promise and the recovery must be limited to the value of the benefit received by the corporation." The lease of a certain part of a line of railroad was not authorized by the stockholders of the company by which said line was owned, as required by statute, and said lease was therefore held void. Inasmuch as the transaction was not tainted with any immorality, a recovery of just compensation for the use of the road was allowed without reference to the unauthorized lease. (Farmers Loan & Trust Co. v. St. Joseph & D. C. R. Co., 1 McCrary [U. S.], 247.)
In' Madison Avenue Baptist Church v. Baptist Church.
In Tracy v. Talmage, 14 N. Y., 162, it was held that, although the vendor was a party to the illegal contract, he was not in pari delicto within the rule which forbids the court to grant one party to an illegal contract or transaction relief against the other, and that where parties to a contract or transaction not malum in se, but prohibited by a statute, are not equally guilty, courts may afford relief to the less guilty party.
In United States Express Co. v. Lucas, 36 Ind., 361, it was held that an agent who had received money for which the company was liable could not as a defense to an action of the company, his principal, set up that his said principal had failed to file in the proper recorder’s office a statement of the capital employed in its business, as required by statute.
From this review of the principal authorities cited to sustain the rules quoted from 2 Morawetz, Private Corporations, section 721, it is shown to be extremely probable that no court, except such perhaps as may have been misled by his statements, has ever enforced the aforesaid principle laid down by Mr. Morawetz, that “ If an agreement is legally void and unenforceable by reason of some statutory or common law prohibition, either party to the agreement who has received anything from the other party must account to the latter for what has been so received.” Equally without judicial sanction is his next proposition, that
In Wilde v. Wilde, 37 Neb., 891, an action for divorce,
Affirmed.