52 Neb. 6 | Neb. | 1897
This action was brought by the plaintiffs below, Root & Parrish, in the district court for Lancaster county to recover from the defendant therein, Charles W. Wilson, the sum of $3,400 on account of the alleged fraud and misrepresentation of the latter in the exchange of certain lands in Greeley county for a stock of drugs and store fixtures. Wilson, according to the allegations of the petition below, through his agent, one Zink, for the purpose of defrauding the plaintiffs therein, falsely represented the Greeley county land, to-wit, the west half of section 29, township 20, range 10 west, to be good farm land, well worth $12 per acre, of which eighty-one acres was then under cultivation; that, believing and relying upon such statements, the plaintiffs entered into a written undertaking whereby Wilson, in exchange for the stock ,of drugs and fixtures aforesaid, agreed to convey said land to the plaintiff, discharged from a mortgage lien thereon amounting to $1,700; that pursuant to said agreement,.and relying altogether upon such representations, they accepted a conveyance of the Greeley county land and delivered possession of said stock and furniture to Wilson, who has sold and removed the same from Lancaster county. It is further specifically alleged that said statements were by Wilson known to be false and fraudulent, and that the land above described was not worth $12 per acre, but that it was, on the contrary, nearly, if not quite, worthless, and could not have been sold for exceeding $1 per acre. An answer was filed, in which, after denial of each and every allegation of fraud, it was alleged as follows: “For further and additional defense, the defendant alleges that said mentioned stock of drugs consisted almost entirely of intoxicating liquors, and that the value of all other goods in said stock, save and except intoxicating liquors, did not amount to the sum of $100. Defendant alleges that said intoxicating liquors consisted of malt, spirituous, and vinous liquors,
Section 24 of chapter 50, Compiled Statutes, provides that the county board (or excise board of cities of the first class) may, under the restrictions of section 1 of said chapter, “grant permits to druggists to sell liquors for medicinal, mechanical, and chemical purposes, upon a compliance with all the provisions hereinbefore contained, and subject to all the requirements and penalties contained in this act, except that no license fee shall be required except the cost of issuing said permit.” The first inquiry suggested by this statement is whether, assuming, as claimed, that the transaction involved is within the statutory prohibition, and therefore void, such fact is available as a defense to this action. It is, according to our understanding of the record, unnecessary to determine whether the cause of action pleaded is, in substance, ex contractu, or one sounding in tort, since the reliance of the plaintiffs is, in either case, upon the alleged illegal agreement. The courts will, as has been often said, refuse their aid in the enforcement of agreements in contravention of statute or good morals, not by reason of their solicitude for the parties, but from motives of self-respect. (Wilde v. Wilde, 37 Neb., 891.) “It is,” as said by Ryan, C. J., in Wight v. Rindskopf, 43 Wis., 344, “the judicial duty always to turn a suitor upon such a contract out of court,
Reversed and remanded.
