Ashford v. Mace

• Decision Date: 11 March 1912
• Citation: 146 S.W. 474
• Parties: ASHFORD et al. v. MACE.
• Court: Arkansas Supreme Court

146 S.W. 474

ASHFORD et al. v. MACE.

Supreme Court of Arkansas.

March 11, 1912.

Appeal from Circuit Court, Garland County; Calvin T. Catham, Judge.

Action by A. J. Mace against Fred Ashford and another. Judgment for plaintiff, and defendants appeal. Affirmed.

Greaves & Martin, of Hot Springs, for appellants. Rector & Sawyer, of Hot Springs, for appellee.

WOOD, J.

The question presented by this appeal is whether or not mere knowledge on the part of a lessor that his lessee intended to sublet the premises leased for the purpose of running a bawdyhouse would render the contract or lease void. In the case of O'Bryan v. Fitzpatrick, 48 Ark. 487, 3 S. W. 527, liquor was sold with knowledge on the part of the seller that the liquor would be resold in violation of the law, and under circumstances which showed that the seller intended that it should be resold. This court, speaking through Judge Cockrill, said: "Mere knowledge by the vendor that liquor is to be resold in violation of the statute, without a participation in the illegal act, will not vitiate the sales he may make to the intended dealers; but if the vendor designedly contributes to the scheme, or is to derive a benefit from it, or if there is a unity of purpose between him and the party to be supplied, he is infected with the latter's criminality, and the contract is void."

In Anheuser-Bush Brewing Association v. Mason, 44 Minn. 318, 46 N. W. 558, 9 L. R. A. 506, 20 Am. St. Rep. 580, the court, after referring to the cases of Tracy v. Talmage, 14 N. Y. 162, 67 Am. Dec. 132, and Hill v. Spear, 50 N. H. 253, 9 Am. Rep. 205, said: "These cases, now regarded as leading on this side of the Atlantic, announce the rule to be that mere knowledge by a vendor of the unlawful intent of a vendee will not bar a recovery upon a contract of sale, yet if in any way the former aids the latter in his unlawful design to violate a law, such participation will prevent him from maintaining an action to recover. The participation must be active to some extent. The vendor must do something in furtherance of the purchaser's design, but positive acts in aid of the unlawful purpose are sufficient, though slight." Continuing, the court said: "While it is certain that a contract is void when it is illegal or immoral, it is equally as certain that it is not void simply because there is something immoral or illegal in its surroundings or connections. It cannot be declared void merely because it tends to promote illegal or immoral purposes. The American text-writers generally admit this to be the prevailing rule of law in the states upon this point."

There is an exception to the rule in cases where the seller knows that the commodity sold is intended to be used by the buyer "in flagrant violation of the fundamental rights of man or of society as in cases of murder, treason, or other heinous felonies that are malum in se." See Steele v. Curle, 4 Dana (Ky.) 381; Anheuser-Bush Brewing Association v. Mason, supra; Hanauer v. Doane, 12 Wall. 342, 20 L. Ed. 439; Milner v. Patton, 49 Ala. 423; Lewis v. Latham, 74 N. C. 283; Bickel v. Sheets, 24 Ind. 1. In the cases of Tatum v. Kelley, 25 Ark. 209, 94 Am. Dec. 717, Ruddell v. Landers, 25 Ark. 238, 94 Am. Dec. 719, and McMurtry v. Ramsey, 25 Ark. 350, the court held that the payee in a note given for the purchase of articles to be used in the war between the states, who knew at the time the articles were to be used in aid of the Confederate states, could not recover. These decisions were based upon the ground that the buyer was engaged in rebellion, which was treason, against the government, and that, therefore, the seller, knowing of these facts, concurred with and actively promoted the treasonable purpose of the buyer. From the viewpoint of the judges who then constituted the court and who participated in and rendered these opinions, it was treason against the government to sell articles to be used by the Confederate army. Hence those cases came within the exception to the general rule. But in the later cases this court, while citing these decisions in 25th Arkansas, nevertheless refused to follow them in cases similar to the one under consideration.

While the keeping of bawdyhouses, on account of its corrupting influence upon public morals and its detrimental effects upon society, has been denounced in the jurisprudence of civilized nations as a common nuisance, a flagrant misdemeanor, nevertheless it has not heretofore been classified by lawmakers and law-writers among the heinous felonies such as treason, murder, rape, etc. 3 Coke, Ins. 205; 1 Bish. Cr. La. 1083—3; 1 Russell on Crimes, 299; 4 Blk. Com. 1671; Rex v. Higginson, 2 Barr. 1232; Rex v. Rogier, 2 D. & R. 431; 1 Wharton, Cr. Law, § 1449. Hence it is within the rule, and not the exception mentioned above. In the case of Hollenberg Music Co. v. Berry, 85 Ark. 11, 106 S. W. 1172, 122 Am. St. Rep. 17, where the seller knew that it was the intention of the buyer to use the article purchased in a house of prostitution, this court cited all the former cases, but followed the rule announced by Chief Justice Cockrill in O'Bryan v. Fitzpatrick, supra, and said: "The rule supported by the weight of authority and approved by this...