Lavecchia v. Tillman

• Decision Date: 02 July 1917
• Docket Number: 19533
• Citation: 76 So. 266,115 Miss. 288
• Court: Mississippi Supreme Court
• Parties: LAVECCHIA v. TILLMAN

76 So. 266

115 Miss. 288

LAVECCHIA v. TILLMAN

No. 19533

Supreme Court of Mississippi

July 2, 1917

Division A

APPEAL from the circuit court of Warren county, HON. J. C. BRYSON Special Judge.

Suit by A. G. Tillman against Joseph Lavecchia. From an order sustaining a demurrer to his pleas, defendant appeals.

Appellee the owner of a storehouse in Vicksburg, leased same to the appellant. The lease provided that:

"The business for which said premises is leased is the sale of soft drinks or near beer, but nothing herein contained, nor verbal understanding, shall give the right to said lessee to conduct any unlawful business herein."

The lessee also obligated himself to comply with all city ordinances in relation to said premises.

The building was rented for a period of nine months at a rental of one hundred dollars for the first three months, and one hundred and twenty five dollars for the last six months. Appellant obtained the city and state license for selling "near beer" and opened business, and unlawfully and notoriously engaged in selling whisky, beer, and other intoxicating liquors, until some time in November, when he was stopped by order of the court.

Some time after the expiration of the lease, appellee filed suit against appellant to recover rent for four months of the term of the lease, which had not expired at the time appellant's place of business was closed by order of the court.

Appellant filed three pleas, the first of which alleged that there was an agreement between the lessor and lessee, that the appellant was to occupy said building for the purpose of selling intoxicating liquors, in violation of the laws of the state; that this fact was well known and consented to by the lessor; that the recital in the face of the lease was intended as a mere subterfuge; and that therefore the agreement was illegal and void. The second plea alleged that the defendant was prevented from carrying out his contract of lease by reason of an injunction suit of the courts enjoining him from continuing in business or further occupying or using the building. The third plea alleges that at the time the lease contract was executed, there was an ordinance in the city of Vicksburg permitting an issuance of "near beer" licenses, and that during the month of December, and before his lease had expired, the authorities of the city of Vicksburg repealed said ordinance and revoked and declared forfeited all near beer licenses, which prevented the defendant from carrying out his contract or lease.

The appellee demurred to the several pleas, and the court sustained the demurrers, and this appeal was prosecuted.

Reversed and remanded.

Henry & Canizaro, for appellant.

The court below committed a fatal error in sustaining the plaintiff's demurrer to each of the defendant's special pleas and we will now proceed to take up the questions of the issue raised by each demurrer in the order in which they appear.

First: It is admitted by the demurrer, that the landlord knowingly leased his property to the appellant for the illegal purpose of selling intoxicating liquor, and parole evidence is admissable to expose the immoral and unlawful character of the transaction, it being against the public policy.

By the first demurrer (to the appellant's special plea) the appellee contends that Mr. Levecchia could not introduce parole evidence to expose the unlawfulness of the transaction because that would vary the term of the written contract. The authorities are unanimous that parole evidence is admissible. 9 Cyc., page 766.

5. Evidence of Illegality. Where a contract is assailed on the ground that it is illegal and void, the defense may be and generally is established by evidence aliunde, for the rule which forbids the introduction of parole evidence to contradict, add to, or vary a written instrument does not extend to evidence offered to show that a contract was made in furtherance of objects forbidden by statute, by the common law, or by the general policy of the law. It is competent to prove that a written contract was executed on Sunday and is therefore invalid, although it purposes on its face to have been executed on another day. When the consideration for a contract is the compounding of a felony, the contract is void, and evidence tending to show that no crime was in fact committed is not admissible. And a fortiori statements of the prosecuting attorney in regard to the merits of the prosecution are not admissible."

The illegality of the contract was a question of law for the court below on the issue made out by the pleading, and the demurrer should have been overruled. 9 Cyc., page 777. Charles S. Houghton Receiver, etc., v. Williams S. Burden, U. S. Supreme Court Rep., 57 Law Ed. 780, 228 U.S. 161; Scott v. Lloyd, 9 Pet. 418, 9 L.Ed. 178; McWilliams County Treasurer v. Phillips, 51 Miss. 196.

The case of Mitchell v. Campbell, recently decided by this court and reported in 72 So. page 231, appears to us should be decisive of the case at bar. Ryan et al. v. Potwin, Trustee, 62 Ill.App. 134; Stillman v. Lovelace, 152 Ill.App. 332; Ashbrook v. Dale, 27 Mo.App. 649; Dougherty v. Seymour, 16 Colo. 289, 26 P. 823; Sherman v. Wilder, 100 Mass. 537; Sprague v. Rooney, 104 Mo. 349, 16 S.W. 505; Bank v. Owens, 2 Pet. 538, 7 L.Ed. 508.

The court will not assist either party in any transaction where in the nature of things it will "be made the handmaid of iniquity." Deans v. McLendon, 30 Miss....