Atwood v. Lester

• Decision Date: 23 July 1898
• Citation: 20 R.I. 660,40 A. 866
• Parties: ATWOOD v. LESTER et al.
• Court: Rhode Island Supreme Court

40 A. 866

20 R.I. 660

ATWOOD

v. LESTER et al.

Supreme Court of Rhode Island.

July 23, 1898.

Assumpsit by Emma P. Atwood, as administratrix, etc., against J. Erastus Lester and others. A verdict was rendered in favor of plaintiff, and defendants move for a new trial. Motion overruled.

Cooke & Angell, for plaintiff.

Herbert Almy and Elmer A. Wilcox, for defendants.

TILLINGHAST, J. This is an action of assumpsit, and is based on a promissory note which reads as follows: "Providence, R. I., October 10, 1893. Upon thirty days' notice, I promise to pay to Emma P. Atwood, administrator of the est. of Henry H. Atwood, of Johnston, R. I., the sum of eight thousand eight hundred and sixty-seven dollars, with interest at the rate of six per cent., for value received. $8,867. J. Erastus Lester." At the foot of this note, on the same paper, and upon the same side of it, appears the following: "Waiving demand and notice, we hereby guaranty the payment of this note, any future payment on account of either principal or interest not releasing us as guarantors. James W. Stevenson. Mary J. Stevenson." The action is brought against the maker and the said Stevensons jointly, and the declaration consists of counts upon the instrument and of the common counts against the defendant Lester alone, and also against all of the defendants. The pleas are: (1) The general issue, which is pleaded by all the defendants; and (2) a special plea of fraud by the Stevensons, as follows: "And for further plea in this behalf, by leave of the court first had and obtained, these defendants, James W. Stevenson and Mary J. Stevenson, jointly and severally come and defend," etc., "when," etc., "and say the plaintiff her action against them ought not to have or maintain, because they say that, since the making and signing of the said guaranty in the plaintiff's declaration mentioned, it has come to the knowledge of these defendants that the note for the payment of which such guaranty was given by these defendants was given and the money pretended to be secured by said note and guaranty was paid by the plaintiff in the furtherance of and as part of an illegal and fraudulent design and purpose on the part of said plaintiff with respect to the money so paid and so pretendedly secured by said note and guaranty, whereby, by reason of such false, fraudulent, and illegal design and purpose on the part of the plaintiff, these defendants, said James W. Stevenson and Mary J. Stevenson, were released and discharged from all liability to her, said plaintiff, by reason of their signing such pretended guaranty on said note in the plaintiff's declaration mentioned. And this they are ready to verify. Wherefore they pray judgment," etc. At the trial of the case in the common pleas division, the jury, under instructions from the court that the plaintiff was entitled to recover, rendered their verdict for the plaintiff, against all of the defendants, for the sum of $9,844.36. The defendants now move for a new trial on the grounds: (1) That the court erred in not appointing a guardian ad litem for the defendant Lester, who was represented to be under mental disability; (2) that the court erred in its rulings in excluding certain testimony; (3) that the court erred in instructing the jury that the plaintiff was entitled to a verdict against all of the defendants; and (4) that the verdict against the Stevensons was against the evidence.

First, then, as to the question regarding the mental disability of the defendant Lester. The record shows that previous to the opening of the case, Mr. Almy, on behalf of the defendant Lester, moved that a guardian ad litem be appointed for him upon the strength of an affidavit of Mr. Lester's physician, which was produced, to the effect that the mental condition of Mr. Lester was such as to make him unfit to appear in court, that his testimony would be valueless, and that he was mentally incompetent to care for his interests in any litigation to which he was a party. Upon the presentation of said affidavit the court inquired if there was any defense, and the counsel replied that Mr. Lester had no defense. Thereupon the motion for the appointment of a guardian ad litem was overruled, and the trial allowed to proceed. The ruling was duly excepted to by Mr. Almy. The plaintiff's contention is that, even conceding that Mr. Lester was a lunatic, a judgment against him is neither void nor voidable, and hence that the verdict should not be set aside on account of said ruling. That an insane person may be sued, and jurisdiction over him acquired, by the like process as if he were sane, is abundantly established by the authorities. 1 Freem. Judgm. § 152; 1 Black, Judgm. § 205; Johnson v. Pomeroy, 31 Ohio St 247; Stigers v, Brent, 50 Md. 214; King v. Robinson, 33 Me. 114. And, this being so, a judgment obtained against him is not void; but according to the prevailing doctrine, it is doubtless voidable. Lamprey v. Nudd, 29 N. H. 299; Black, Judgm. § 205. The verdict in this case, then, being only voidable, should it be set aside simply on the ground of the defendant's mental unsoundness at the time it was rendered? for it is not contended that defendant was mentally incompetent or of unsound mind at the time he gave the note and received the money. We think not it is admitted by his counsel that he has no defense to the action on its merits. The defendant received the amount represented by the note, and had the use and benefit thereof, and he is therefore justly Indebted to the plaintiff therefor. If a guardian ad litem had been appointed, he could have interposed no defense to the suit and the verdict would have been the same as that rendered. While, therefore, we think that in all cases where the mental unsoundness or insanity of a defendant is set up, although not formally adjudicated, it would be better practice for the court to appoint a guardian ad litem, yet, as the defendant in the case at bar has not been prejudiced In any degree by the failure of the court to appoint one, we do not think the verdict should be set aside on that ground.

The rulings complained of in connection with the rejection of the testimony relate to a single question, and hence may properly be considered together. Defendants' counsel offered to show that the money which plaintiff loaned to Lester was taken by her from the Providence Institution for Savings, where it was safe, and placed in the hands of Lester, for the purpose of defrauding the plaintiff's son out of said money, the latter being the equitable owner of a part thereof. Perhaps the question raised may be more intelligently presented by referring to the remarks of the court and counsel in the premises. By Mr. Almy: "Evidence is offered showing, or tending to show, that the note and guaranty in the suit were made in pursuance of a fraudulent attempt to conceal money belonging to other parties,—not belonging to this suit,—and that they were ignorant of such intent." The Court: "I understood your questions were, Mr. Almy, to show that there were certain moneys in the bank which you claim were properly in the hands of this plaintiff, which she devoted to the use which she did which was an improper use, as you claim. You claim that that is fraud. Is that as far as you go?" Mr. Wilcox: "We go a little further, and claim that there was a design to cover it up, so that the beneficiary could not find it." The court ruled that the testimony was inadmissible, and the defendants duly excepted. In support of defendants' contention that the ruling was erroneous, they rely on the familiar doctrine that, "whenever two or more persons are engaged in a fraudulent transaction to injure another, neither law nor equity will interfere to relieve either of those persons, as against the other, from the consequences of their own misconduct." Stated more briefly, the contention is that an agreement to do an unlawful act cannot be supported at law; that no right of action can spring out of an illegal contract. See Broom, Leg. Max. (4th Ed.) 573. We are not disposed to take issue with such a wise and salutary rule, founded, as it is, in honesty and good morals. Indeed, this court has repeatedly both recognized and adopted it. See Whelden v. Chappel, 8 R. I. 230; Smith v. Rollins, 11 R. I. 464; Chafee v. Manufacturing Co., 14 R. I. 168; Colwell v. Armstrong, Id. 178; Sullivan v. Horgan, 17 R. I. 109, 20 Atl. 232. But it is not applicable to the case before us for two reasons, viz.:

First. Because the plaintiff could make out her case without proving, or opening to the defendants to prove, a fraud in which both parties participated. Chafee v. Manufacturing Co., supra. The plaintiff's case was made out by proving the execution of the note and the advancement to Lester of the money represented therein. The question asked by defendants' counsel of plaintiff's daughter, in cross-examination, as to whether her mother had in her possession any money which belonged to witness' brother, was not in cross-examination of anything plaintiff had gone into. It had nothing to do with the contract sued on, and therefore was rightly ruled out. It was no concern of the defendants where plaintiff got the money, or whether she held it as trustee or otherwise, and hence the question was wholly irrelevant. The only question at issue was whether the plaintiff had loaned said sum to the defendant Lester on the note in suit; and, there being no dispute that such was the fact, the plaintiff's case was made out, provided the defendants were properly joined in the action, which we will consider later.

The second reason why the rule above invoked is not applicable is that the action is brought by the plaintiff in her representative character as administratrix. The law applicable to a case of this sort is very clearly and forcibly stated in Wetmore v. Porter, 92 N. Y. 76, where it was held that it is no defense to an action brought by an executor as such,...