Ashford v. Mace

• Decision Date: 11 March 1912
• Citation: 146 S.W. 474,103 Ark. 114
• Parties: ASHFORD v. MACE
• Court: Arkansas Supreme Court

146 S.W. 474

103 Ark. 114

ASHFORD v. MACE

Supreme Court of Arkansas

March 11, 1912

Appeal from Garland Circuit Court; Calvin T. Cotham, Judge affirmed.

Judgment affirmed.

Greaves & Martin, for appellants.

1. The court erred in proceeding upon the theory that the knowledge or intention of the lessor at the time of making the lease would not affect the legality of the contract, and in holding that it was not a proper issue in the case unless an intention appeared from the contract that the lessor was to receive a benefit therefrom.

The principle applies, even in States where it is ruled that recovery may be had for sales of personalty for immoral purposes, that where real property is leased with knowledge that it is to be used for immoral purposes, a recovery can not be had on the contract, on the theory that the knowledge of the lessor of the intended use implies consent to that use, and thus implicates him in the design. 106 Mass. 537; 122 Mass. 231; 179 Mass. 53; Benjamin on Contracts, (2 ed.) 280; 2 Taylor, Landlord & Tenant, §§ 521, 644; 18 Am. & Eng. Enc. of L. 316; 4 Daly (N. Y.) 467; 140 N.Y. 364; 62 N.H. 596; 16 Col. 289; 104 Mo. 349; 62 Ill.App. 134; 114 Cal. 91; 71 Vt. 253; 20 Ga. 449; 22 La.Ann. 54; 4 Tex. Cr App. 459; 117 Am. St. Rep. 509-511, note to State v. Wilson.

2. At the common law, which, under Kirby's Dig., §§ 623-624 controls here in the absence of a special statute on the subject, one who kept a bawdy house or brothel was guilty of a misdemeanor. The act of running such a house is indictable, therefore, in this State as a misdemeanor. The lessor of premises with knowledge that they are to be used for such purposes is indictable as a principal. Appellee can not recover for that reason also. 38 Ark. 637; 94 Ark. 207; 20 Mass. 26; 16 Col. 289; Benjamin on Contracts, (2 ed.), 248; 29 Ark. 386; 47 Ark. 378.

Rector & Sawyer, for appellee.

1. Mere knowledge of a lessor of the intention of a lessee to sublet the leased premises to a subtenant for the purpose of running a bawdy house is not sufficient to make void the contract. 85 Ark. 11; 94 Ark. 99.

2. Whether or not at the common law knowingly letting a house to a person intending to run a bawdy house is a misdemeanor need not be determined in the decision of this case. See 32 Am. St. Rep. 456, notes to Graves v. Johnson; 9 Cyc. 571.

3. A mere avowal by the lessee of an intent to use the leased premises for an immoral purpose would not justify the lessor in repudiating his contract. 8 Am. Rep. 140, note; 49 Mo. 474; 13 R. I. 350.

WOOD, J. HART and KIRBY, JJ., dissenting.

OPINION

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 bawdy house 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 liqour 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-Busch Brewing Association v. Mason, 44 Minn. 318, 9 L.R.A. 506, the court, after referring to the cases of Tracy v. Talmage, 14 N.Y. 162, and Hill v. Spear, 50 N.H. 253, 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 can not 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, 34 Ky. 381, 4 Dana 381; Anheuser-Busch Brewing Association v. Mason, supra; Hanauer v. Doane, 79 U.S. 342, 12 Wall. 342, 20 L.Ed. 439; Milner v. Patton, 49 Ala. 423; Bickel v. Sheets, 24 Ind. 1.

In the cases of Tatum v. Kelley, 25 Ark. 209, Ruddell v. Landers, 25 Ark. 238, and McMurtry v. Ramsey, 25 Ark. 349, 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 bawdy houses, 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, Inst. 205; 1 Bish. Cr. Law 1083-3; 1 Russell on Crimes, 299; 4 Blk. Com. 1671; Rex v. Higginson, 2 Burr 1232; 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. 9, 106 S.W. 1172, 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 court is that, though the contract is entered into by one of the parties for the furtherance of an illegal purpose, the contract will not be rendered illegal as to the other party, though he had knowledge of such illegal purpose, provided he does nothing in furtherance thereof."

Again in Belmont v. Jones House Furnishing Company, 94 Ark. 96, 125 S.W. 651, the same rule is recognized and adhered to.

The instant case can not be distinguished in reason and principle from the latter cases. The lower court, in its admission and exclusion of evidence, and in the giving and refusing of...