Kick v. Merry

• Decision Date: 31 March 1856
• Citation: 23 Mo. 72
• Parties: KICK, Respondent, v. MERRY, Appellant.
• Court: Missouri Supreme Court

23 Mo. 72

KICK, Respondent,

v.MERRY, Appellant.

Supreme Court of Missouri.

March Term, 1856.

1. An agreement to reward a public officer, a policeman, for doing that which it is his duty by law to do, is void as against public policy.

Appeal from St. Louis Law Commissioner's Court.

This was a suit to recover upon a contract, set forth in the petition as follows: “That in consideration that the plaintiff would use his utmost diligence in aiding and assisting to apprehend one G. W. Morrison, charged with the crime of larceny, and aid in bringing him, the said Morrison, to trial, for the said crime, he, said defendant, would give to said plaintiff one half of whatever amount might be recovered from said Morrison, at the suit of the State of Missouri against him, said Morrison, upon said charge of larceny, as aforesaid.”

The court below found the following to be the facts proved upon the trial of this cause: “That on or about the 9th day of May, 1854, the defendant was knocked down and robbed of a large amount of money, about $290, by one G. W. Morrison, in the city of St. Louis; that the defendant agreed with the plaintiff, that if he, the plaintiff, would procure the arrest of the said Morrison, and if he, the said Morrison, should be convicted of the robbery, he, plaintiff, should have one half of the money that might be found upon the person of the said Morrison. The plaintiff thereupon set about ferreting out the said Morrison, and shortly succeeded in arresting him, and found upon his person $215 of the money; that the said Morrison was convicted of the offence in the St. Louis Criminal Court, and sentenced to the penitentiary, and the said $215 were ordered by the Criminal Court to be delivered by the county marshal to the plaintiff or his representative; that, at the time he made the arrest, the said plaintiff was acting as, and holding the office of, captain of the day police of the city of St. Louis, receiving a stated salary from said city for his services; that the defendant did not know the said Morrison, nor his whereabouts at the time of making the agreement as stated; that he furnished the plaintiff with a description of Morrison's person, who thereupon searched for him, arrested him, and took him to the room of the defendant at the Virginia hotel, who recognized him as the person who had knocked him down, and taken his money; that he arrested him merely upon the representation and description of the defendant, without any warrant.”

The court, on this finding of facts, declared the law to be that the plaintiff is entitled to recover, and that the amount of his recovery ought to be the half of $215, the amount found upon Morrison's person.

Judgment was accordingly given for the plaintiff for $107 50. A motion for a review having been made and overruled, the case is brought to this court by appeal.

S. A. Bennett, for appellant.

I. There is a material variance between the contract stated in the petition and that found by the court.

II. The contract stated in the petition, as well as that found, is void, and can not be enforced against the appellant for one or both of two reasons: 1. It is without consideration, being a contract to pay the plaintiff for services which it was his official duty to perform, and for which he was compensated by the city. 2. It is against public policy. (Pool v. City of Boston, 5 Cush. 219 and cases cited.)

III. That it is the duty of police officers to make arrests in many cases without warrants, see State v. Roberts (15 Mo. Rep. 28).

Hart & Jecko, for respondent.

SCOTT, Judge, delivered the opinion of the court.

This action cannot be maintained. It is a principle of the common law that an officer ought not to take money for doing his duty. Hawkins says, “if once it should be allowed that promises to an officer, to pay more for his services than the law allows, could sustain an action, the people would quickly be given to understand how kindly they would be taken, and happy would that man be who could have his business well done without them.” (1 Hawk....