113 Mo. App. 409 | Mo. Ct. App. | 1905
Lead Opinion
— The facts out of which the action arose may be summarized in about this way: The plaintiff was in possession of a pasture in Woodward county, Oklahoma, containing about 240 sections of land which he had inclosed with a barbed wire fence. The title to all this land except about two-ninths was in the
The plaintiff himself testified that the defendant denied that it owed the pasture bill and insisted that it was a debt of Hudson’s. He further testified that he refused to allow the cattle to be moved from the pasture until his claim was settled and until he got the note.
The defendant by its answer pleaded amongst other defenses that, “the only pasturage and feed' furnished the said cattle of the said Hudson by the plaintiff for which the plaintiff claimed the said Hudson was so indebted to him as aforesaid, and to secure payment for which the aforesaid note executed by Hudson on the back... whereof the defendant’s name was written, was given, was growing on the public lands of the United States Government in the Territory of Oklahoma; that plaintiff had no claim or color of title to, and no right to the exclusive possession of the said public lands which the defendant’s cattle had depastured; that the plaintiff had wrongfully and unlawfully fenced, inclosed, and exclusively occupied and controlled the said public lands against the statute of the United States of America in such cases made- and provided, to-wit: An Act to Prevent Unlawful Occupancy of Public Lands,’ Chapter 149, U. S. Statutes at Large, Yol. XXIII, enacted February 25,1885.” And that by reason of the premises the said note executed by the said Hudson, on the back of which defendant’s name appears, was given for an illegal and void consideration.
The answer further pleaded that the defendant as such mortgagee, together with the mortgagor, the said Hudson, went to take, and made demand for, possession of said cattle to ship them to market for sale; that the plaintiff, although he well knew that he had not himself as an agister, or otherwise, any valid claim to, or lien upon, the said cattle for pasturing them on the public domain as aforesaid, did, nevertheless, refuse to release and deliver over to the defendant and Hudson,
A great number of instructions were requested, -some of which were refused and will be noticed further on. The trial resulted in a judgment for plaintiff and defendant appealed.
Tbe defendant assails tbe judgment on tbe distinctive ground that tbe court erred in refusing an instruction requested by it which in substance declared that if tbe jury found that tbe note in suit was given in consideration that the plaintiff bad cared for certain cattle belonging to Hudson and that a part of such care was tbe pasturing of such cattle on public lands of tbe United States within an inclosure constructed thereon by plaintiff and tbe keeping of such cattle from straying away by means of such inclosure so constructed around such pasture, then its verdict should be for defendant, even though it believed that plaintiff may have rendered some lawful services in caring for said cattle. Tbe defendant’s refused instructions numbered three and five were similar in their enunciation.
It is not disputed that tbe consideration of the note was tbe feeding and pasturing of tbe Hudson cattle. '
But it is contended that as the amount of the feed bill, which was the larger part of the consideration of the note, was legal and valid, and as the remaining part of the consideration was for keep of the cattle only, Avithout including any charge for the grass eaten by the cattle while so confined in the pasture, that therefore no part of the consideration of the note was illegal. The pasturing of the cattle by plaintiff Avas not gratuitous. He in the first instance claimed a large amount for the use of the grass — for the grazing — but finally, upon the suggestion of his attorney and the arbitrator, he eliminated that and restricted his claim to the amount he had laid out and expended for the employment of “cowboys” to care for the cattle and keep them confined in the pasture. They were used in maintaining the unlaAvful inclosure on the public domain. The case is not different than if the plaintiff had himself personally attended to the maintenance of the fence and the keeping the cattle in the pasture inclosed by it, and had charged for such services. In Avhich case the use made by him of the unlawful inclosure of the public domain Avhile caring for the cattle Avould, under the contract, whether express or implied to pay for such service, be illegal and void. It
The rule is that, when a contract is bad in part it is bad altogether when the two cannot be accurately separated. Within this rule one entire consideration cannot be separated though composed of distinct items, some of which are legal and others illegal. And this rule prevails in Oklahoma — Garst v. Love, supra— and in this State. [Kansas City v. O’Connor, 82 Mo. App. 655; Malone v. Fidelity Co. 71 Mo. App. 1; Friend v. Porter, 50 Mo. App. 89; Peltz v. Long, 40 Mo. 532.] As has already been stated that a part of the care bestowed on Hudson’s cattle by the plaintiff was by the means and nse of the unlawful inclosure and the cowboys who maintained such inclosure, we cannot doubt that as to the part of the claim for keeping the cattle in the pasture was illegal and therefore the note must be held to have been given without any supporting consideration.
It is true this action is on the contract of guaranty and not the note, but the law is quite well settled that when the principal obligation is void for illegality that that infirmity will extend to and vitiate the contract of guaranty and will constitute a defense open to the guarantor in an action on the guaranty itself. [Kansas City v. O’Connor, 82 Mo. App. 655; Wilkerson v. Hood, 65 Mo. App. l. c. 494-5; Sedalia Ry. Co. v. Smith, 27 Mo. App. 371; Heman v. Francisco, 12 Mo. App. 559; Sumner v. Summers, 54 Mo. 340.] En passant, we may say that an examination of Cherokee, etc., v. Cass, etc., 138 Mo. 394, will show that there is nothing in that case trenched upon by our ruling in this.
The conclusion therefore must be that under the pleadings and evidence the defendant was entitled to a
The defendant further complains of the action of the court in refusing its instructions VI, VII, and IX, as follows:
“VI. If you believe from the evidence that the note in suit was given by Hudson, and guaranteed by defendant, in consideration that the plaintiff would release certain cattle, and to obtain the release of certain cattle, which the plaintiff was then holding as security to insure payment to himself of a debt claimed by him to be due from Hudson, and if you further believe from the evidence that the debt which plaintiff claimed to be due by Hudson, and for which plaintiff was holding the cattle as security, was owed even in part for the pasturing of these cattle within, and for keeping them from straying by means of a fence erected on the public lands of the United States in Oklahoma, then you are instructed that the detention of the cattle by plaintiff for the purpose of securing such debt so claimed to be due by the plaintiff was unlawful, and that, even although the plaintiff released the cattle upon the giving of said note with defendant’s signature on the back thereof, there was no consideration either for Hudson’s note, or for the defendant’s signing its name on the back thereof, and your verdict must be for the defendant.”
“VII. The court instructs the jury that if you find from the evidence that the note in suit was given by Nick Hudson to plaintiff in part or in whole to settle an account or bill of plaintiff against said Hudson for the herding or keeping within the fences or inclosures of plaintiff the cattle of said Hudson or for the pasturage or grazing charges of Hudson’s cattle while in said inclosures or fences, and that any part of the land on which said cattle were so grazed or pastured or kept from straying by reason of said fences or inclosures, was United States Government land or public domain or*420 greater area than 160 acres, then you must find for defendant and return a verdict accordingly,”
“IX. You are instructed that under the law of this case plaintiff had no agister’s lien on the cattle of Hudson and had no right to detain the same, and if you believe from the evidence that Tandy imposed as a condition for peacefully’surrendering the said cattle that defendant should guarantee the note in suit and that the note was for a pasture bill due Tandy for pasturing or caring for said cattle and that defendant complied with said condition in order to peacefully get possession of said cattle, then you are instructed that said guaranty was obtained by duress of goods and was unlawful and your verdict must be for the defendant.”
The evidence here showed that the defendant had a mortgage on the Hudson cattle and sought to take possession of them under it. While the plaintiff had possession of the cattle he had no agister’s lien on them for the keep and feed. An agister’s lien did not exist at common law — Stone v. Kelley, 59 Mo. App. 214; Pickett v. McCord, 62 Mo. App. 467 — which by adoption was in force in Oklahoma. It was conceded that there was no statute in that territory giving any such lien. Besides this, the defendant’s mortgage was antecedent to the agistment lien had there been such, as there was not. [Stone v. Kelley, supra.] The plaintiff’s right in'any event was subordinate to that of the defendant. He held possession of the cattle and would not surrender that possession to the defendant unless it would pay his illegal charge for the keep and care of the same. It was in November and the near approach of the coming winter warned,defendant that the cattle must be removed to where they could be cared for and fed if it desired to preserve its security. Hudson “was not worth 15 cents” and in fact “had laid down,” and so could not and would not arrange for the further keeping and care of the cattle elsewhere which was necessary. The defendant, in view of these conditions, had sent its secretary
It is thus seen from what has hereinbefore been stated that the defendant ought not to be held on the guaranty in suit if he was compelled to execute it only through duress of goods and extortion practiced on him by the plaintiff. It follows from these considerations that the -instructions last referred to should have been given .
Since it is our opinion that those given supplemented by those which we have concluded should have been given present a fair and full expression of the law applicable to the facts of the case, the others refused for
Accordingly, the judgment will be reversed and the
cause remanded.
Rehearing
CUN REHEARING.
— Plaintiff insists that since there was an arbitration of the differences existing between the parties that the award in his favor, and execution of the note in compliance therewith, had the effect of eliminating the question of illegality of consideration in the use of the public lands. We do not concur in that view. The question was asked and answered in the following paragraph: “But can an award springing out of an illegal consideration, which no court can enforce, stand on any higher ground than the contract itself? Is the contract purged of its illegality by the award? We think not. And we apprehend that no authority can be found that goes to this extent.” [Fain v. Headrick, 44 Tenn. 327.] And it was raid in Hall v. Kimmer, 61 Mich. 269, that “a claim being illegal and absolutely forbidden by statute could not lawfully be made the subject of arbitration.” And so, in Benton v. Singleton, 114 Georgia 548, 557, the court said: “An award depends altogether for its force and validity upon a contract to be bound thereby, made by the person against whom it is returned. A contract to pay an illegal demand in the event an arbitrator shall say it is just, is no more binding than would be a contract to pay it evidenced by a bond or promissory note. The form which a contract of this nature assumes in no wise affects the question of its validity.”
The weight of authority supports those cases. The laws in support of a general public policy and in enforcement of public morality cannot be set aside by arbitration, and neither will persons with a claim forbidden by the laws be permitted to enforce it through the
Neither can the acceptance of a note for the amount awarded aid a claim for such sum. For, it is out of the power of individuals to legalize that which the law prohibits by executing a contract, the consideration of which is the immediate fruit of the prohibited thing.
The judgment is reversed and the cause remanded.