Keith v. Fountain

• Decision Date: 03 May 1893
• Citation: 22 S.W. 191
• Parties: KEITH v. FOUNTAIN.
• Court: Texas Court of Appeals

22 S.W. 191

KEITH v. FOUNTAIN.

Court of Civil Appeals of Texas.

May 3, 1893.

Appeal from Atascosa county court; H. D. Marr, Judge.

Action by W. H. Fountain against B. E. Keith on an executory contract whereby plaintiff was to receive a certain compensation for surveying a tract of land for defendant. Judgment was rendered for plaintiff, and defendant appeals. Reversed.

W. J. Bowen, for appellant. J. W. Preston and J. M. Eckford, for appellee.

KEY, J.

Appellee instituted this suit in a justice of the peace court for the recovery of $150 for an alleged breach on the part of appellant of the following written contract: "State of Texas, county of Atascosa. Know all men by these presents, that I, W. H. Fountain, have this day agreed with B. E. Keith to establish for him lines around 80 acres, at least, or 160 acres, if to be found, of vacant land; to well establish all adjoining lines of surrounding surveys, so that the land may be well described for investigation at the gen'l land office, and furnish all necessary papers pertaining to a settlement of the said Keith as an actual settler, — for which service the said Keith obligates himself to deliver to the said Fountain two 2 year old mules, in sound condition, and the sum of 25$ dollars, if but 80 acres, or 40$ dollars, if a larger tract is found, to the amount of 160 acres. It is agreed and understood by and between the parties hereto that, should a less amount than 80 acres be found, it will be optional with the said Keith to appropriate the same, and that all expenses of the necessary survey will be met by said Fountain. Witness our hands, at Pleasanton, this, the 17th day of Feby., 1890. W. H. Fountain.

                     his
                B. E. X Keith."
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Judgment was rendered against appellant for $110, and he appealed the case to the county court, where a similar judgment was rendered. After the case reached the latter court, appellant filed an answer averring that, at the time of the execution of the contract sued on, appellee was county surveyor of Atascosa county, and that in making and attempting to enforce said contract he was violating articles 118 and 240 of the Penal Code of this state. On motion of appellee this plea was stricken out because the transcript from the justice's court did not show such plea to have been interposed in that court. There was testimony in the county court tending strongly to show that a plea of "illegal contract" was orally made by appellant in the justice's court, but there was also testimony to the contrary. In view of the condition of the record, however, we do not regard the action of the court in striking out the answer as material. In developing his case, appellee shows by his own evidence that at the time in question he was county surveyor of Atascosa county; that the services rendered by him under the contract were in the line of his duty as such officer; that he was not engaged over three days in rendering the service, and for which the fees allowed by law are much less than the amount recovered. Under these circumstances it was not necessary for appellant to plead the illegality of the contract. Unless otherwise provided by statute, when a plaintiff seeks to enforce an executory contract, or to recover damages for its breach, if, in the development of his case, it is made to appear that the consideration of the contract involves a violation of a penal law, the courts will declare the contract void, and refuse to aid in its enforcement, whether its illegality be pleaded or not. Russell v. Burton, 66 Barb. 539; Evans v. Richardson, 3 Mer. 469; Parken v. Whitby, 12 Eng. Ch. 369; Oscanyon v. Arms Co., 103 U. S. 261. It is expressly provided by the law of this state that "if any person who is an officer or clerk in the general land office, or a district surveyor, or deputy district...