In re Estate of Lowe
| Decision Date | 17 January 1920 |
| Docket Number | 20663 |
| Citation | 175 N.W. 1015,104 Neb. 147 |
| Parties | IN RE ESTATE OF ELLIOTT LOWE. v. JOSEPH WHYTE ET AL., ADMINISTRATORS, APPELLANTS EDWIN L. MALSBARY, APPELLEE, |
| Court | Nebraska Supreme Court |
APPEAL from the district court for Lancaster county: WILLIAM M MORNING, JUDGE. Affirmed.
AFFIRMED.
T. S Allen and Fawcett, Mockett & Walford, for appellants.
B. F. Good, A. W. Richardson, A. M. Bunting and Paul F. Good contra.
The plaintiff sues the administrators of the estate of Elliott Lowe to recover the sum of $ 214.94, alleged to be due on account of money had and received. Plaintiff's cause of action is based on the following instrument, which is in nature and form a due-bill in words and figures following: It is stipulated and agreed by and between the parties that, whatever judgment may be rendered in this case, the same shall be decisive of other similar claims held by plaintiff under assignments.
The defendant by way of defense pleads confession and avoidance, alleging that plaintiff's cause of action is based on speculation and ventures on margins in wheat and other grains, depending for profits or losses on fluctuations on the market on the board of trade, that no grain was actually bought or sold or intended to be bought or sold by either party, and that in the profits and losses on "the open board" the same are contrary to the statutes of the state of Nebraska, contrary to public policy, void and unenforceable. These transactions between plaintiff and Elliott Lowe, deceased, were speculations on the fluctuations in quotations on the board of trade. Defendants admit the death of Elliott Lowe, and defendants herein are administrators of his estate. The reply tendered to the issues of the answer is a general denial.
This case comes to this court on appeal from a judgment rendered in favor of plaintiff.
The issue tendered by plaintiff is one for money had and received. The defense offered is that of no liability on their part because the transaction is based on a contract contra bonos mores.
The record shows the plaintiff was able to sustain and did maintain his cause of action without aid or assistance of any transaction growing out of an illegal act or one that might be construed as contrary to public policy.
It may be admitted that a contract to operate in grain options to be adjusted according to differences in market value thereof is a gambling operation, contrary to public policy. Lord Mansfield announced the true doctrine, which is followed by all courts, when he said: "No court will lend its aid to a man who founds his cause of action upon immoral or illegal contract." Holman v. Johnson, 1 Cowper (Eng.) 341. This doctrine was announced by the Massachusetts supreme court in Russell v. DeGrand, 15 Mass. 35: "The rule of law is of universal operation, that none shall, by the aid of a court of justice, obtain the fruits of an unlawful bargain." That is the law of this state.
The true test is: Does the plaintiff, to sustain his claim, of necessity have recourse to an illegal act? If he cannot maintain his cause of action without so doing, this court as a matter of law will not assist him. The plaintiff's cause of action can be maintained at law as of and for money had and received; while defendants as a matter of law are compelled to rely upon a contract that is vitiated with the poison of immorality. To maintain his theory, we recognize the validity of his defense to set up a contract that is contra bonos mores. Then this court must leave him just where it found him.
The record shows that plaintiff turned over to Elliott Lowe deceased, certain money to buy and sell grain on the Chicago board of trade, and def...
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