Cornwell v. St. Louis Transit Company
| Decision Date | 15 March 1904 |
| Citation | 80 S.W. 744,106 Mo.App. 135 |
| Parties | CORNWELL, Respondent, v. ST. LOUIS TRANSIT COMPANY, Appellant |
| Court | Missouri Court of Appeals |
Appeal from St. Louis City Circuit Court.--Hon. Jas. R. Kinealy Judge.
Judgment affirmed.
Boyle Priest & Lehmann and George W. Easley for appellant.
(1) There being no evidence whatever to show that Jourdan had any authority to contract for the payment of rewards, the defendant's demurrer to the evidence should have been sustained. Houghton v. Ellis, 73 P. 752; Weeks on Attys. (2 Ed.), secs. 215-219. (2) The instruction given for plaintiff does not submit to the jury the questions of fact that, under any view, arose in the case. They are: Did Jourdan promise and agree to pay the reward after plaintiff had been discharged from the posse if he would secure the final conviction of Daly? Had Jourdan any power or authority to so contract on behalf of defendant? It is clear that the plaintiff could not recover unless the defendant contracted to pay after plaintiff ceased to be a member of the posse. Cornwell v. St. Louis Transit Co., 73 S.W. 305. (3) Every new agreement entered into for the purpose of carrying into effect any of the unexecuted provisions of a previous illegal contract is void. Coneter v. Robinson, 14 S. & M. (Miss.) 18. Any subsequent contract which carries into effect an original illegal contract is itself illegal. Adams v. Bowen, 8 S. & M. (Miss.) 624. (4) Where a suit is brought to recover for services, part of which is illegal, there can be no recovery, however small the illegal part may be. Bixby v. Moore, 51 N.H. 420; Sullivan v. Horgan, 17 R. I. 109; 20 A. 232; Pool v. City of Boston, 5 Cush. 219. Here the arrest and conviction, made and secured while plaintiff was in office and not entitled to receive the reward, are so intermingled, connected and interwoven with the alleged new contract as to make them inseparable, and not the subact of apportionment, and the whole contract, old and new alike, is illegal.
Richard A. Jones for respondent.
(1) The point made by appellant that respondent, at the time he aided in taking Daly in charge and conveying him to the city jail was a police officer, paid for such services by the public and so was not within the terms of the offer of reward made by appellant, was not brought to the attention of the trial court in any appropriate manner. (2) An exception can not be predicated upon mere non-direction concerning a matter to which the court's attention was not specifically challenged at trial. Feary v. O'Neal, 149 Mo. 477; Wheeler v. Bowles, 163 Mo. 409. (3) Where a case originates in justice court, and no pleading is filed on the part of defendant, it is the duty of defendant on trial in the circuit court to present its claims as to the legal deductions to be drawn from the evidence by appropriate instructions, and in case this is not done, even though usury or any other matter may appear from the evidence which would justify a finding against a transaction, still the court is not bound to instruct on such proposition in trial by jury, nor in trial by the court, to consider it in its findings unless requested to do so. Wickersham v. Jarvis, 2 Mo.App. 279; More v. Climer, 12 Mo.App. 19; Schell v. Loan & Savings Association, 150 Mo. 164.
This case in the array of facts established at its retrial, presents an aspect only varied by the testimony of Morton Jourdan, who was examined by defendant and whose testimony contradicts, in certain particulars, the version of the interviews had with him by plaintiff. This witness deposed that plaintiff and his companion had called three times, that the witness was employed by defendant during the strike of its operatives in the capacity of counsel, especially in criminal matters, both in the defense of employees and in the prosecution of persons who interfered with the property of defendant, delayed the movements or obstructed the operation of its cars and the like, but solely in the relation of an attorney; that in such capacity he furnished bond for employees of defendant arrested, employed attorneys in their defense, aided the police department and sheriff's office in situations growing out of the strike, and aided the prosecuting attorney's office in prosecution of persons who violated the law either by assaulting employees or interfering with the operation of the cars, but that his employment respecting rewards was confined to passing upon the validity of such claims professionally as the legal representative of defendant; and if he found the company legally liable, he simply recommended payment, and in the present instance he had advised no liability existed because there was no final conviction and the arrest was made by plaintiff and his associate while members of the posse, and therefore he declined to advise payment of the reward in question and so informed them, and his last recalled conversation with them occurred after trial had in the court of criminal correction and prior to final judgment. The testimony in other regards presented the facts displayed when the case was first in this court (73 S.W. 305), 100 Mo.App. 258.
At the close of the testimony, the court submitted the case in a single comprehensive instruction, apparently given of its own motion, but no other instruction appears to have been presented by either party. The objections relied on by appellant are twofold and in the language of its counsel are embraced in the queries, whether Jourdan promised to pay the reward...
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