79 Mo. App. 648 | Mo. Ct. App. | 1899
The plaintiffs sold to defendant a race horse for the sum of three thousand dollars. Of this amount $2,750 was to be paid in cash and a note for $250 was to be given, which was to become due and payable on demand after the horse had won a ráee. The cash payment was made and the note was given, in which the aforesaid condition was expressed. The present action is on the note. The cause was submitted to the court without a jury. The defendant objected to the introduction of any evidence for the alleged reason that the petition did not state facts sufficient to constitute a cause of action. The objection was overruled. The note was read in evidence, its execution not being denied. The plaintiff proved that prior to the institution of the suit the horse ran in a race at the California Jockey Club; that the association offered a purse of $300 to the fastest horse; $70 to the second, and $30 to the third,, and that the horse in question won the first prize. The plaintiff also proved a demand and the refusal of defendant to pay the note. The defendant offered no evidence, but submitted an instruction in the nature of a demurrer to plaintiff’s evidence. The court refused the instruction and thereupon found the issues for plaintiffs and entered judgment for the amount of the note. The defendant has appealed.
But if this point be conceded to the appellant his defense would not be helped. A party to a contract that is against public policy and who has enjoyed its fruits, can not avoid his obligations under the contract, unless he restores or offers to restore to the other party all that he received under it. Wiggins Ferry Co. v. Railroad, 73 Mo. 389. The judgment of the circuit court will be affirmed.