139 Mo. App. 420 | Mo. Ct. App. | 1909
Plaintiff instituted this action by filing a bill in equity praying for dissolution of a partnership with defendants and for an accounting. The case was referred to a referee who took the evidence brought forward by the parties and made his finding for the plaintiff. Exceptions were taken to his report, which the court sustained and entered a judgment for the defendants.
It appears that plaintiff was a widow and that her name was Skinner. That her husband died in 1905, and that afterwards, in the latter part of the summer or' early fall of 1906, she returned to Queen City, Schuyler county, Missouri (the seat of this controversy), where she had formerly lived and went to board with defendants, who are husband and wife. Defendant D. B. Mitchell was engaged in the livery stable business in that town and shortly after plaintiff came to his house he sold her a half interest in the business and livery stock for five hundred dollars in cash.
It seems that plaintiff desired to get married again and was so anxious in that regard that she advertised for a husband in the newspapers through a matrimonial agency. In this way, one Wenninger, of Lincoln, Nebraska, learned of her and he too, wanting to get married, entered into a correspondence with plaintiff which quickly resulted in an engagement and shortly thereafter their marriage. In thus, getting a husband plaintiff wittingly or unwittingly laid the foundation for the defense to this action. Defendants admit that plaintiff purchased one-half interest in. the livery stable for five hundred dollars and became a partner in the business. But they claim that she said to Mrs. Mitchell before she purchased the interest in the livery stable that she would pay well if we “would assist her in getting a man.” That after she purchased of them the interest in the stable “she said if we would help her get this man she would give us her interest in the barn for our service.” Defendants say they carried out their
In the first place we find the work claimed to have been performed by defendants for plaintiff to be of such trifling nature as not to deserve serious consideration. It consisted principally- in writing two letters. The time covered by this “service” was between the middle of September and the 24th of October, for the first letter was written two or three weeks after plaintiff arrived at their house, which was the latter part of August, and the last one must have been prior to October 24th, as that was the day of the marriage. Thus, some time within the space of four or five weeks, Mrs. Mitchell wrote two letters at plaintiff’s dictation. The record does not disclose how long a time this took, but the simple matter of writing two letters could not have taken long. Suffice it to say we cannot bring ourselves to believe the task was worth one-half of a livery stable for which plaintiff had just paid defendants five hundred dollars.
But defendants will say that the foregoing was not all the service they performed “in getting a man” for plaintiff. Their further claim came about in this way: It seems that Wenninger, recognizing the custom in such affairs, endeavored to seek plaintiff by going to her and having the wedding at her home. But counsel say the “Pates” interfered, and as he was on his way to the train in Lincoln, he met with an accident on a street car, the nature of which is not disclosed. However he immediately instituted an action for damages against the street railway and wrote to plaintiff the reason for his failure to appear at her home. It was then arranged by plaintiff that she would go to Lincoln and the ceremony could be performed notwithstanding the misfortune. Plaintiff invited defendants to the wedding and Mrs. Mitchell straightway accepted, or at least imme
But this is not all to be said, on this head, in plaintiff’s behalf and defendants condemnation. Plaintiff paid the expenses of Mrs. Mitchell and gave Mr. Mitchell a new bedstead. When he learned that plaintiff was to pay his wife’s expenses for the trip and to give him her new bedstead, his objection softened and the hesitation noted above faded away. These considerations make it a matter of some wonder how this branch of the defense, so extraordinary in its nature, could have been set up.
Yet, notwithstanding the foregoing considerations, it must be conceded that the record discloses some evidence of an agreement on plaintiff’s part, though she testified that there was not. For the reasons following it will not be necessary for us to say whether she did, in fact, promise to pay for what tvus not much more than imaginary service.
The defense is based on an unconscionable claim. In Ball v. Reyburn, 137 Mo. App. —, 118 S. W. 524, we approvingly cited this definition of an unconscionable contract from Chesterfield v. Jansen, 2 Ves. Sr. 155: It
But if we should have concluded that the evidence favored the defendants, it would have been, for another reason, of no benefit to them. It would but show a contract which the law would not aid -in enforcing. The contract would be nothing less than that known as marriage brokerage, which is condemned where the English common law is enforced. The contract, according to the evidence in behalf of the defendants themselves, is one whereby they agreed to aid the plaintiff in bringing about a marriage. They were to procure, or aid in procuring, a husband for the plaintiff. It was subject to all the vicious tendencies such contracts have -been shown to possess, and is wholly void. [2 Parsons on Contracts, 73; Lawson on Contracts, sec. 321; 3 Addison on Contracts, sec. 1349; Jangraw v. Perkins, 76 Vt. 127; Duvall v. Wellman, 124 N. Y. 156.]
The fact that plaintiff was engaged in seeking to marry Wenninger when defendants were called in and'
In Crawford v. Russell, 62 Barb. 92, the contract was “that plaintiff .should do all she could to aid a marriage between Jeremiah and Christina by her' influence and services,” for which service and influence Christina promised, if she became the wife of Jeremiah^ she would pay plaintiff two thousand dollars in cash and to purchase for her a piano and also a gold watch for plaintiff’s daughter and pay the expense of the daughter’s education. The contract was condemned as illegal. In that case it is shoAvn that the civil law allowing and encouraged marriage brokers and matchmakers for the reason that it Was thought to facilitate matrimony. But the common law looked more to bad tendency and the evil consequences flowing from marriages thus brought about. And Judge Story said “the surprise is not that the doctrine should have been established in a refined, enlightened and Christian country, but that its propriety should ever have been a matter of debate.” In Boynton v. Hubbard, 7 Mass. 112, such contracts were pronounced void, “not because they are fraudulent upon either party, but because they are a fraud upon third persons, and because they are a public mischief, as they have a tendency to cause matrimony to be contracted on mistaken principles . . . and they are relieved against for the sake of the public.”
But it may be said that plaintiff is m pari delicto and therefore cannot take advantage of the illegality, since the law will not aid one who has joined in acts which the law forbids. There are, however, cases where notwithstanding the plaintiff may profit by the relief asked, the public good requires that it be granted; especially is that true when the party seeking relief is the lesser wrongdoer. The question was recently elaborately discussed by Judge Valliant in Hobbs v. Boatright, 195 Mo. 693. The judge said that “The doctrine that 'courts will not aid a plaintiff who is in pari delicto with the defendant is not a rule of universal application, it is based on the principle that to give the plaintiff relief in such case would contravene public morals and impair the good of society; therefore, the rule should not be applied in a case in which to withhold the relief would to a greater extent offend public morals. To promote the good of the public is the highest aim of the courts in the application of this doctrine. Under the head of exceptions to the rule in 9 Cyc., p. 550, it is said: ‘Although the parties' are in pari delicto, yet the court may interfere and grant relief at the suit of one of them where public policy requires its intervention, even though the result may be that a benefit will be derived by a plaintiff who is in equal guilt with the defendant. But here the guilt of the parties is not considered as equal to the higher right of the public; and the guilty party to whom the relief is granted is simply the instrument by which the public is served.’ A question of what is public policy in a given case is as broad as a. question of what is fraud in a given case and is
The question was presented to the Court of Appeals in New York in a case of the kind before us (Duval v. Wellman, 124 N. Y. 156). The contract was between a woman seeking a husband and the proprietor of a matrimonial journal called the “New York Cupid,” and it read as follows: “June 2,1887. Due Mrs. Guión, from Mr. Wellman, fifty dollars ($50), August 15th,, if at that time she is willing to give up all acquaintance with gentlemen who were introduced in any manner by H. B. Wellman. If Mrs. Guión marry the gentleman whom we introduced her to, an additional fifty dollars ($50) is due Mr. Wellman from Mrs. Guión. (Signed) H. B. Wellman. E. Guión.”
The court ruled that the money paid on the contract could be recovered back on the ground that the woman was not the equal in guilt with the marriage promoter. And that where the contract was not malum m se, the law Avould afford relief to the more innocent party; and that two parties might “concur” in an illegal act without being deemed in all respects m pari delicto.
We therefore feel not restrained by the rule in pari delicto and, in consequence, do not consider that it in any wise stands in the Avay of plaintiff’s right to claim her partnership share of the livery stable property.
The judgment is reversed and the cause remanded with direction to overrule objections to the referee’s report and enter judgment thereon as therein indicated.