Kerwin v. Doran

• Decision Date: 20 February 1888
• Citation: 29 Mo.App. 397
• Parties: M. W. KERWIN & COMPANY, Respondents, v. PATRICK DORAN, Appellant.
• Court: Kansas Court of Appeals

29 Mo.App. 397

M. W. KERWIN & COMPANY, Respondents, v. PATRICK DORAN, Appellant.

Court of Appeals of Missouri, Kansas City.

February 20, 1888

APPEAL from Nodaway Circuit Court, HON. CYRUS A. ANTHONY, Judge.

Affirmed.

The case is stated in the opinion.

WILLIAMS & JACQUES, W. W. RAMSEY, and M. SAUNDERS, for the appellant.

I. The trial court erred in sustaining plaintiffs' motion to strike out the second count of defendant's answer; such a counter-claim has been sustained. Weber v. How, 36 Mich. 150. This count alleged a contract made in Iowa; the motion confessed the fact; hence, the law of Iowa must govern this contract. Story Conf. Laws, secs. 242, 280; Bank v Donnally, 8 Peters [U. S.] 372; Broadhead v Noyes, 9 Mo. 56; Golsen v. Ebert, 52 Mo. 260; Roach v. Type Foundry, 21 Mo.App. 118; Burchard v. Dunbar, 82 Ill. 450; Hill v. Spear, 50 N.H 253; 2 Parsons on Contracts, 586. If this counter-claim could have been pleaded in Iowa, where it is alleged the contract was made and would have been a good defence there, then it was a good defence in Missouri, where suit was brought, and where neither of the parties lived.

II. The court erred in permitting the witness, M. W. Murphy, to testify concerning the customs of his house, in the employment of salesmen and in approving and executing their orders. Such custom did not prove, or tend to prove, the authority in fact given the salesman who made the sale in question.

III. The court erred in sustaining the plaintiffs' objection to defendant's questions propounded to plaintiff, Murphy, touching the reason plaintiffs sued in this state, and in not permitting plaintiff to be interrogated touching the same. It was important to know whether plaintiff knew that by his own act he had violated the law of Iowa. Gaylord v. Soragen, 32 Vt. 110; Aiken v. Blaisdell, 41 Vt. 656. It was important to know whether this deal was an ordinary sale of goods, or whether plaintiffs actively participated in violating a state law. Hill v. Spear, 50 N.H. 523. This was certainly proper on cross-examination. 1 Greenl. Evid., sec. 446.

IV. The court erred in giving instructions number one and two for plaintiffs. These instructions were in no wise applicable to the case as made in the pleadings and by the evidence. State v. Miller, 67 Mo. 604; State v. Little, 67 Mo. 624; Kaufman v. Harrington, 23 Mo.App. 572; Weil v. Schwartz, 21 Mo.App. 372.

V. The court erred in refusing to give instruction number three on part of defendant. This instruction required knowledge of Iowa law and of Doran's guilty pursuit and active participation to avoid state laws. Gaylord v. Soragen, 32 Vt. 110; Aiken v. Blaisdell, 41 Vt. 656; Webster v. Munger, 8 Gray 587; Feineman v. Sachs, 33 Kas. 621. In all of these and other leading cases, the courts draw a distinction between a plaintiff who simply knew of the foreign law, and that his vendee might intend to violate it, and a plaintiff who actually aided his vendee to evade and violate the law. The former has been permitted to recover, but the latter never that we know of. Curran v. Downs, 3 Mo.App. 468; Mitchall v. Bacon, 49 Mo. 474; Belding v. Pitkins, 2 Cains. 147; Wheeler v. Russell, 16 Mass. 258.

VI. The court erred in refusing to give instructions numbers six and nine. Hall v. Ruggles, 56 N.Y. 428; Arnot v. Pittman, 68 N.Y. 567; Benj. on Sales, secs. 506, 508; Story Confl. of Laws, secs. 256, 257; Davis v. Bronson, 6 Iowa 410. Such contracts arising out of moral or political turpitude, and in evasion of laws and in fraud of the just rights of any foreign nation, ought to be enforced in any forum. Armstrong v. Toler, 11 Wheaton 258; Story Confl. of Laws, sec. 259.

VII. The record shows that plaintiffs acted in disregard of the law of Iowa, not only in the sale, but in the institution of this suit in a foreign state upon the law of comity also. Green v. Van Buskirt, 5 Wall. (U. S.) 327.

IRA K. ALDERMAN and E. S. JANES, for the respondents.

I. The trial court properly sustained plaintiffs' motion to strike out the second count of defendant's answer. This count pleaded a penal statute of a sister state as a defence. It is a rule universal that penal statutes are not enforceable outside of the state where enacted. The form of the action or remedy must be according to the lex loci. McAlister v. Smith, 17 Ill. 328; Smith v. Godfrey, 28 N.H. 379; Bank v. Kidder, 12 Vt. 464; Story's Conf. of Laws, sec. 619; 2 Kent's Com. 454; Gale v. Easton, 7 Metc. [Mass.] 14. Defendant pleads his counter-claim as if based absolutely on a bonafide contract, and then pleads the Iowa statute. Such was not the case. It was only a contract constructively, and hence, only applied in the state where the law operated, and such a statute cannot be enforced in a forum where such a contract as sued on is lawful.

II. The court, sitting as a jury, like a jury, is judge of the evidence and weight of the evidence. The first count in defendant's answer, and the reply thereto by plaintiffs, put in issue a fact, to-wit, the locus contractus of the purchase, sale, and delivery, which formed the basis of plaintiffs' action. The verdict on the evidence was for plaintiffs, and the appellate court will not review this branch of the case. Anderson v. Griffith, 86 Mo. 549; Webb v. Webb, 87 Mo. 540; Snyder v. Burnham, 77 Mo. 52; Brown v. Railroad, 23 Mo.App. 209; Fox v. Young, 22 Mo.App. 386; Hulbert v. Jenkins, 22 Mo.App. 572; Perkinson v. Fehlig, 21 Mo.App. 327, and O'Conner v. Standard Theatre Co., 17 Mo.App. 675.

III. The contract sued on was made and concluded in the city of Chicago, in the state of Illinois, where it is not questioned the law sanctioned it. The mere fact of plaintiffs' knowledge of the intention and purpose of defendant to illegally sell the liquors purchased by him, does not affect the validity of the contract. It is very clear, in this case, that it was not an ingredient of the contract that the liquors were to be illegally sold by the defendant in Iowa, or that the liquors were to be sold at all, or that plaintiffs had any interest directly or remotely in the result of such alleged sales, or were in any way to assist defendant in such sales. In so far as the evidence shows, this was purely defendant's business, prompted and executed by his own volition.

IV. A contract is to be governed and construed by the lex loci contractus, unless another place is appointed for its performance. See authorities cited under point I., and also, State v. Shaeffer, 89 Mo. 271; Graff v. Foster, 67 Mo. 512; Schouler on Bailments, 456 or 556; Stewart v. Jessup, 51 Ind. 413; Norris v. State, 25 Ohio St. 217; State v. Dennis, 80 Mo. 594; Dennis v. Eversole, 101 Ill. 138; Bishop on Contracts, sec. 1376; Swan v. Swan, 21 F. 299; Gauthier v. Cole, 17 F. 716; Taylor v. Pickett, 3 N.W. 514; Gross v. Scarr, 33 N.W. 223; Feineman v. Sachs, 33 Kan. 621; Weil v. Golden, 6 N.E. 229, and note, p. 232.

V. " It is a general rule of international law, that the rights of the parties to a contract, as distinguished from their remedies, are to be determined by the law of the place where the contract is to be performed," but the place of performance must clearly appear by the terms of the contract, or the lex loci contractus governs as to validity and construction, and the lex fori governs as to remedy of personal contracts. Kanaga v. Taylor, 7 Ohio St. 134; 70 Am. Dec. 62, and note, p. 66, and authorities cited; 91 U. S. Rep. [1 Otto] 406.

PHILIPS P. J.

Prior to the making of the contracts in question, and ever since, there existed in the state of Iowa what is commonly known as a prohibitory law against the sale of intoxicating liquors. By it no person was permitted to manufacture, or sell, or keep for the purpose of sale, any such liquors in the state, except for mechanical, medicinal, culinary, and sacramental purposes. By it all contracts of sales, and obligations therefor, were declared void; and all payments made therefor are declared to be in violation of the statute, and to have been received upon a promise to refund the same to the party so paying it. It also declares that no action of any kind should be maintainable in any court of that state for intoxicating liquors, or the value thereof sold in any other state, contrary to the law of the state in which such sale was made, or with the intent to enable any person to violate the said law, etc.

The defendant was a saloon-keeper at Ottumwa, in Iowa. The plaintiffs were merchants in the city of Chicago, state of Illinois. Before the making of the contracts in question a traveling salesman of plaintiffs' house visited the defendant at his place of business in Ottumwa, and solicited custom from him, and obtained some orders from defendant on the house in Chicago for such liquors. After which the defendant sent many orders by letter to plaintiffs for liquors. The evidence tended to show that such orders were sent subject to the approval of the Chicago house. They packed the goods, directed as agreed upon by the parties, and delivered them to the railroad companies at Chicago, as common carriers, to be transported to the party named, at Ottumwa. From the time that defendant began thus to transact business with the plaintiffs, he made them payments aggregating about eleven hundred dollars, leaving a balance on account due and owing to plaintiffs, of about $339.90; to recover which this action is brought.

The defendant having in this state certain personal property, the plaintiffs instituted suit by attaching such property. The defendant entered his personal appearance to this action, and set up the said statute of Iowa, alleging that the contracts of sale aforesaid were made in violation thereof, and were therefore, void. The answer further pleaded, by way of...