Howell v. Stewart

• Decision Date: 31 October 1873
• Citation: 54 Mo. 400
• Parties: PIZARRO W. HOWELL, Defendant in Error, v. ELIAS C. STEWART, Plaintiff in Error.
• Court: Missouri Supreme Court

54 Mo. 400

PIZARRO W. HOWELL, Defendant in Error,

v.ELIAS C. STEWART, Plaintiff in Error.

Supreme Court of Missouri.

October Term, 1873.

Error to St. Charles Circuit Court.

Glover & Shepley, for Plaintiff in Error.

I. If the contract grows immediately out of, or is connected with, an illegal or immoral act, a court of justice will not enforce it (2 Kent Com., 466; Buck vs. Albee, 26 Ver., 184). If the illegal use to be made of the goods or money enters into the contract, and forms the motive or inducement in the mind of the vendor (or lender) to the sale or loan, then he cannot recover, provided the goods or money are so used. (Kneiss vs. Seligman, 8 Barb., 439; McKinnell vs. Robinson, 3 Mee. 7 W., 434.)

II. That, for which a demurrer will lie, cannot be reached by a motion to strike out.

W. A. Alexander, for Defendant in Error.

I. The mere fact of knowledge on the part of Howell, that Stewart was about to bring the cattle into the county contrary to law, does not invalidate the note.

II. The answer does not say what was done with the money. (Michael vs. Bacon, 49 Mo., 474.)

III. As to amending the answer, there is no statement under oath or otherwise of any good defense.

SHERWOOD, Judge, delivered the opinion of the court.

The plaintiff brought suit against the defendant in the St. Charles Circuit Court on a promissory note, dated July 8th, 1872, for the sum of one thousand dollars.

The answer of the defendant is as follows: “Defendant for his answer says, that he is surety only on the note sued on, that the principal debtor therein is John E. Stewart, that said debt was contracted for money loaned said Jno. E. to assist him in bringing in said county of St. Charles Texas cattle, contrary to the statute law of this State, and at a time when their importation was not allowed, to-wit: between the first days of March and the first days of December; that the said plaintiff loaned said Jno. E. said amount of money with the knowledge that said Jno. E. was engaged in bringing said cattle into said county, and that at the time said loan was made the said Jno. E. had in the city of St. Louis two hundred head, more or less, of said cattle, which were held by the carriers for freight and charges, and that the same could not be moved until said charges were paid; that said Jno. E. desired to bring said cattle into said St. Charles County, and applied to plaintiff for aid in order that he could pay said charges and procure the necessary help in order to drive said cattle into said St. Charles County; that said plaintiff, with full knowledge and in order to assist said Jno. E. in paying said charges, help, etc., loaned said amount of money to said Jno. E., that the importing and bringing said cattle in said county at said time was illegal and contrary to the act of the General Assembly of said State, approved Feb. 26th, 1869, that said plaintiff loaned said money to said Jno. E., with the full knowledge that he was engaged in bringing said cattle in said county, and for the express purpose and design on his part to aid and abet the said Jno. E. in his designs in and about the importation of said cattle at said time, wherefore, this defendant says that said plaintiff ought not to have or maintain his aforesaid action, etc.” On the ground that this answer did “not state facts sufficient to constitute a defense to plaintiff's claim,” it was stricken out on motion of plaintiff, and the court thereupon entered interlocutory and final judgment against the defendant, who duly saved his exceptions both to the sustaining of the motion and the rendition of judgment. These proceedings were had on the 8th day of Sept. 1873; three days afterwards the defendant filed his motion to set aside the judgment and for leave to file an amended answer, on the grounds, that no opportunity was afforded defendant to amend his answer, as the court rendered judgment immediately on the determination of plaintiff's motion; that defendant was entitled to his day in court, that the cause was not set for trial until the 15th of the month, that defendant, having filed his original answer within the time prescribed by law, was not in default, that defendant according to the rules of the court was entitled to a reasonable time in which, to amend his answer, and no such opportunity was given, that his defense was meritorious, and the amendment only asked in furtherance of justice.

This motion being overruled, defendant excepted, and filed his motion to set aside the first judgment as well as to set aside the judgment overruling his motion. This motion being also overruled, he again excepted, and brings the case here on writ of error.

The points involved in this record, and to which our attention has been called by counsel, are three, namely:

First--Did the matter contained in the answer constitute a defense to the action?

Second--If the answer did not set forth a defense, could the defect be reached by motion to strike out, or could this result have been accomplished by demurrer alone?

Third--Conceding that the answer was no bar to plaintiff's action, did the court err in rendering judgment without affording the defendant an opportunity for amendment?

These questions will be considered in their order. As to the first: No review in extenso of the numerous and, in many respects, conflicting authorities on the topic of the avoidance of contracts in consequenc eof illegality will be here attempted, but our attention will be directed in that channel of thought, and to that mode of reasoning, which we deem applicable to the point in hand and regard as sustained by well considered cases.

We look upon this answer as essentially bad in two particulars; First, it does not aver that the money loaned was ever in fact used in consummation of the alleged illegal purpose. Second, even if it had contained such allegation, it would still have been bad, because of the terms of the statute on which reliance must have rested to sustain the charge of illegality.

The act of February 2nd, 1872, is substantially like that of February 26th, 1869, in its prohibition of the introduction into any county in this State, at a certain season of the year, of Texas, Mexican or Indian cattle.

The penalty for the infraction of this statute is, so far as concerns the person of the offender, a fine, or both a fine and imprisonment in the county jail. The offense then is but a statutory misdemeanor, and in that class of offenses the intent is wholly immaterial, as the law in such cases predicates guilt alone on the act done irrespective of the motives which prompted its commission. For with mere guilty intention, unconnected with overt act or outward manifestation, the law has no concern.

According to the defendant's own showing no act was done, and consequently, the law which he seeks to use as a shield not having been violated, it follows as an inevitable sequence, that there was no illegality in the transaction to which his answer refers.

There is no room therefore in this case for the application of those maxims ordinarily applicable where guilty purpose is merged and swallowed up by criminal execution.

Aside from felonies or crimes involving great moral turpitude, the mere knowledge of the lender or vendor, that the money loaned, or property sold, is designed to be applied to an unlawful purpose, will not prevent a legal recovery based on such loan or sale. This was so held in Michael vs. Bacon, 49 Mo., 474. And that case goes far toward being decisive of this; for cases of that character are not legally distinguishable from this, on the point now under discussion, as in either case there must be something done, beyond a simple sale or loan, in furtherance of some intended illegal act which is actually consummated, before he who loans, or he who sells, can become in legal contemplation a participator, upon whom the gates of justice will be shut.

Thus in Holman vs. Johnson, Cowp., 341, the leading case, in England on the subject, the plaintiff, a resident of Dunkirk, sold a quantity of tea to the defendant, and delivered it there to the...