Ham v. Smith

• Citation: 87 Pa. 63
• Parties: Ham <I>et al. versus</I> Smith.
• Decision Date: 06 May 1878
• Court: United States State Supreme Court of Pennsylvania

87 Pa. 63

Ham et al. versus Smith.

Supreme Court of Pennsylvania.

April 4, 1878.

May 6, 1878.

April 4th 1878.

Before AGNEW, C. J., SHARSWOOD, GORDON, WOODWARD and TRUNKEY, JJ. MERCUR and PAXSON, JJ., absent

Error to the Court of Common Pleas of Wayne county: Of January Term 1878, No. 77 C. S. Minor and H. Wilson, for plaintiffs in error.—The court had the power to open the judgment and order a feigned issue: Kellogg v. Krauser, 14 S. & R. 143; Hopkins v. West, 2 Norris 110. The contract was against public policy and void: Filson v. Himes, 5 Barr 452; Clippinger v. Hepbaugh, 5 W. & S. 315; Hatzfield v. Gulden, 7 Watts 152; Hunter v. Nolf, 21 P. F. Smith 282. There can be no recovery upon a note made in execution of an illegal contract: Morris Run Coal Co. v. Barclay Coal Co., 18 P. F. Smith 188. The cases cited by the court below are clearly distinguishable from this, and do not sustain the court's ruling. The contract in the present case is void, also, under the provisions of the Act of April 18th 1874, Purd. Dig. 1866, pl. 36, 37. That act enumerates the purposes for which money may be used to further the nomination and election of candidates for legislative and other offices.

E. O. Hamlin, G. G. Waller and H. M. Seely, for defendant in error.—This judgment (the making of the note, upon which it is founded, being admitted in the affidavit upon which the motion to open the judgment was based) needed no support at the outset, from the note or anything else: Cannell v. Crawford County, 9 P. F. Smith 200. Smith had withdrawn, and the note was given and accepted as the fulfilment and execution of the agreement to pay his expenses, and long after the results of the withdrawal had been obtained by the parties judgment was regularly entered upon the note. It was an executed contract: Baker et ux. v. Lukens, 11 Casey 146. The giving of the note therefore was no part of the original transaction. Where, as here, the contract has been executed, and one of the parties holds the result, and the action is not on the contract precluded but upon another instrument unimpeachable upon its face, requiring no evidence to sustain it, he should not be allowed to go into the original transaction to show that the thing sought to be recovered was the result of an illegal transaction. This principle is well settled in Pennsylvania in Lestapies v. Ingraham, supra; and in Fox v. Cash, 1 Jones 211; Evans v. Dravo, 12 Harris 62; and approved in Walker v. Kremer, U. S. Circuit Court, in 4 W. N. C. 544. An agreement is not void on the ground of public policy unless it manifestly contravenes it and is injurious to the interests of the state: Chitty on Contracts ^*579. The rule as to public policy is not to be extended: Richardson v. Mellish, 2 Bing. 229. The cases cited by plaintiffs in error it is respectfully submitted do not apply. This is not the case of a violation of a statute, as in Hopkins v. West, 2 Norris 110. The Act of April 18th 1874, has no application, no person concerned herein at the time said note was given being a candidate for any office whatever, and the law is applicable only to candidates.

Mr. Justice GORDON delivered the opinion of the court, May 6th 1878.

The rule to open the judgment in this case, was made absolute by consent of the parties, and no conditions were imposed upon the defendants. The plaintiff must therefore prove his case as on a new trial: Carron v. Coulter, 2 Grant 131. Hence, the court erred in holding the judgment itself to be an important fact in the issue trying. The order opening the judgment vacated it, except for the purposes of lien, and whether the plaintiff was ever again to...