Rice Brothers & Nixon v. National Bank of Commerce

Decision Date06 April 1903
Citation73 S.W. 930,98 Mo.App. 696
PartiesRICE BROTHERS & NIXON, Appellants, v. NATIONAL BANK OF COMMERCE, Respondent
CourtKansas Court of Appeals

Appeal from Jackson Circuit Court.--Hon. James Gibson, Judge.

AFFIRMED.

Judgment affirmed.

John Burgin and Beardsley, Gregory & Kirshner for appellants.

Filed an argument on the merits.

Elijah Robinson for respondent.

Filed argument in reply.

OPINION

ELLISON, J.

--This is an action on a contract of indemnity. At the close of the evidence for plaintiffs, in consequence of the ruling of the trial court they were compelled to take a nonsuit, and failing to have it set aside have come here for relief.

The substance of plaintiffs' petition and upon which they depend for a cause of action is, that in November, 1898, they shipped from the interior of the State of Kansas, to Kansas City, Missouri, a large lot of cattle belonging to them. That on arriving at Kansas City they discovered, for the first time, that 128 head of these were not theirs. That they likewise learned of a number of claimants to them, each claiming adversely to the other, among whom was defendant. That it was thereupon agreed between them and defendant that in consideration of their turning the cattle over to defendant, the latter would indemnify and protect them against damages by reason of their act. That thereafter another claimant to said cattle brought his action against plaintiffs and others in a court of competent jurisdiction in Kansas, wherein, among other allegations, he charged plaintiffs with having converted said cattle to their own use. That afterwards, judgment for damages for the value of the cattle was obtained against plaintiffs. That they duly notified defendant of the institution of such suit and demanded of it that it defend said action, which it failed to do. That afterwards plaintiffs were compelled to and did pay such judgment.

The facts developed at the trial, so far as is necessary to state in view of our conclusion, are that one Gillet, who was a large cattle dealer in Kansas, was largely indebted to a number of persons, several being bankers and others commission men in Kansas City, Missouri. It appears to have become suddenly known that he was insolvent. Among others plaintiffs and defendant were his creditors, each claiming mortgage liens on certain of his cattle. When plaintiffs were advised of Gillet's condition they immediately sent an employee into Kansas to get what cattle they could presumably those covered by their mortgage. This employee was joined by Nixon, one of the plaintiff's firm, and together they found a large lot of cattle in two enclosures about four miles apart. They immediately took possession of them consisting, according to Nixon's testimony, of about 850 head, and drove them about twenty-five miles to a shipping point on a railroad where they shipped them to Kansas City. Of these, 128 head were not subject to plaintiffs' claim and to which, confessedly, they had no right. On arriving at Kansas City, plaintiffs became aware that other creditors of Gillet were likewise in search of his cattle upon which they could lay hands. Several, including defendant, made claim to a lien on the 128 head. Plaintiffs separated them from the main number and proceeded with the latter into the State of Iowa. It was then agreed between plaintiffs and defendant that plaintiffs would turn the 128 head over to defendant, the latter agreeing to indemnify them in case they were forced to respond in damages to the true owner, or, indeed, to any one of superior right. Plaintiffs, as stated by their principal witness, were anxious to get the cattle into other hands so as to rid themselves of liability. They did not have an opinion as to which of the several claimants of liens had the best right or title; but they decided to turn the cattle over to defendant for the reason that they thought it to be more certainly responsible than the others.

The general principle of law invoked by defendant's counsel to defeat plaintiffs' action is well settled. It is that when the consideration for a contract is illegal the contract is void, whether the illegality is disclosed by the contract itself, or is established by evidence outside. Sumner v Summers, 54 Mo. 340. In furtherance of this principle, it is also well settled, "that any promise, contract or undertaking, the performance of which would tend to promote, advance or carry into effect an object or purpose which is unlawful, is in itself void, and will not maintain an action. The law which prohibits the end will not lend its aid in promoting the means designed to carry it into effect; and in this respect, the law gives no countenance to the old distinction between malum in se and malum prohibitum. That which the law prohibits, either in...

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