Hunstock v. Palmer

• Decision Date: 04 October 1893
• Parties: HUNSTOCK v. PALMER.
• Court: Texas Court of Appeals

23 S.W. 294

HUNSTOCK v. PALMER.

Court of Civil Appeals of Texas.

October 4, 1893.

Appeal from district court, Bexar county; George H. Noonan, Judge.

Action by Robert H. Hunstock against Ion Palmer for rent. There was a judgment in favor of defendant, and plaintiff appeals. Affirmed.

Perry J. Lewis, for appellant.

FLY, J.

This suit is founded upon an account for rent of a house in San Antonio, owned by appellant. Appellee rented it to use for the purpose of a house of prostitution, and did use it all the time for that purpose. Appellant, who was plaintiff in the court below, knew to what purpose it would be put when he made the contract, and was cognizant of the fact that it was all the time being used for immoral and improper purposes. The case was tried by the judge of the trial court without the intervention of a jury, and he gave judgment for the defendant, for the reason, as stated in his conclusions of law, "that the contract of lease was against public policy, and therefore void." In this action of the lower court we conclude there was no error. At the time the contract of lease was made there was no statute making it a penal offense to rent a house for the purposes of prostitution, the amendment including the owner with the keeper in the criminal act having been passed on April 4, 1889; but this will have no importance in shaping the opinion to which we arrive in this cause. In every civilized community, and among all civilized peoples, the crime of prostitution is looked upon as one of the most prolific of depravity and subversive of the public morals. Statutes have been passed against it, the social ban has been placed upon it, and every moral influence has been exerted to check its evil influences. Under the statute of 1889 the owner of the house that is rented by him knowingly for purposes of prostitution is made just as criminal as the keeper. This is referred to, not because it will affect this decision, but it shows the trend of opinion of the lawmakers of the state. In the case of Conner v. Mackey, 20 Tex. 750, Judge Wheeler holds that a gambling consideration was void, whether the game was prohibited by law or not; the ground of the decision being that the contract was contrary to good morals and public policy. In the case of Monroe v. Smelly, 25 Tex. 587, it is held that money due on a wager at tenpins, a game licensed at that time, could not be recovered, on the ground of public policy.

Appellant's counsel, in his ingenious brief, holds that, although appellant knew full well the purposes to which the house would be put, yet this merely existed in his mind, had no bearing on the contract of lease, and there was no connivance at the prostitution of the lessee. In support of this position we are cited to a number of Texas decisions, which, in deference to counsel, we will briefly review. The case of Bishop v. Honey, 34 Tex. 246, is founded upon a contract to build a house to be used as a bawdyhouse, and the court rightly held that the builder should recover, because he was in no way interested in the business to be afterwards conducted in the house. "If," says the court in that decision, "the plaintiff is in any way the gainer by or the partner in an alleged contract, — one which is contra bonos mores, — he cannot recover upon such contract; he cannot recover upon it if it be shown that he is particeps criminis." Again, in the same case, it is said: "In the case at bar the house was not to be paid for out of the proceeds of an illegal vocation. It was to be...