McMillan v. Sproat

• Decision Date: 29 October 1931
• Docket Number: 5590
• Parties: THOMAS MCMILLAN, Respondent, v. HUGH SPROAT, Appellant
• Court: Idaho Supreme Court

4 P.2d 899

51 Idaho 236

THOMAS MCMILLAN, Respondent, v. HUGH SPROAT, Appellant

No. 5590

Supreme Court of Idaho

October 29, 1931

APPEAL AND ERROR-SPECIFICATION OF ERROR, SUFFICIENCY OF-LIMITATION OF ACTIONS.

1. Specification predicating error by general statement requiring appellate court to inspect entire record to find errors and details, held insufficient.

2. Part payment of officer's individual note by company's check tolled statute, although constituting illegal use of company's funds, requiring subsequent repayment.

3. In action on note barred by statute, illegality of obligor's misuse of corporate funds in making part payment cannot be relied on by him to nullify effect of payment.

APPEAL from the District Court of the Third Judicial District, for Ada County. Hon. Chas. F. Koelsch, Judge.

Action on a promissory note. Judgment for plaintiff. Affirmed.

Judgment affirmed; costs to respondent.

E. G Elliott, for Appellant.

If a plaintiff requires any aid from an illegal transaction to establish his demand, he cannot recover. (Phalen v Clark, 19 Conn. 421, 50 Am. Dec. 253; Dennis v. Sharman, 31 Ga. 607; Pike v. King, 16 Iowa 49; Matthews v. Wayne Junction Trust Co., 197 F. 237.)

Richards & Haga, for Respondent.

Where the appellant's brief does not contain an enumeration of the errors relied upon, as required by the rules of this court, the appeal should be dismissed. (Rule 40 of the Supreme Court of the State of Idaho; Thomas v. Union Savings Bldg. & Trust Co., 38 Idaho 247, 221 P. 132; Bain v. Olsen, 39 Idaho 170, 226 P. 668; Morton Realty Co. v. Big Bend Irr. & Min. Co., 37 Idaho 311, 218 P. 433; Stedtfeld v. Eddy, 45 Idaho 584, 264 P. 381.)

Where there is no evil or wrongdoing in the subject matter of the contract which plaintiff seeks to enforce, he cannot be denied relief because of some extraneous transaction or matter. (C. J. , pp. 959, 960; Langley v. Devlin, 95 Wash. 171, 4 A. L. R. 32, 163 P. 395; Western Union Tel. Co. v. Commercial Pacific Cable Co., 177 Cal. 577, 171 P. 317; Bradley Co. v. Bradley, 165 Cal. 237, 131 P. 750; Miller & Lux v. Enterprise Canal & Land Co., 142 Cal. 208, 100 Am. St. 115, 75 P. 770.)

No one is permitted to set up his own wrongdoing or fraud as a defense to a cause of action. (Sickman v. Lapsley, 13 Serg. & R. (Pa.) 224, 15 Am. Dec. 596; Jackson's Law Latin, 2d ed., p. 118, par. 20; Brooks v. Weik, 114 Kan. 402, 219 P. 528; Tulsa Torpedo Co. v. Kennedy, 131 Okla. 159, 268 P. 205; General Electric Co. v. Minneapolis Electric Lamp Co., 10 F.2d 851.)

LEE, C. J. Budge, Givens, Varian and McNaughton, JJ., concur.

OPINION

LEE, C. J.

On April 19, 1929, plaintiff and respondent, Thomas McMillan, sued defendant and appellant, Hugh Sproat, on a promissory note in the principal sum of $ 15,000. The note dated September 1, 1921, fell due two years later and bore the indorsement, "McMillan Sheep Co. by Hugh Sproat, Pres." The complaint alleged a payment on April 26, 1925, made by check of the sheep company under the direction of Sproat as president and that thereafter respondent had been compelled by a suit in the federal court, brought at the instance of a creditor of the sheep company, to account to said creditor and pay over to it the entire amount of the payment aforesaid. After a general denial, defendant and appellant plead the statute of limitations and charged that the payment aforementioned, having involved the use of company funds in satisfaction of a private debt, the transaction was illegal and void, constituting neither payment nor acknowledgment such as would avoid the bar of the statute.

The court found that appellant had caused the note's indorsement by the sheep company; that he voluntarily made the payment of April 26th by a company check signed by himself as president; that, at the time, he intended it as a payment on the note; that respondent accepted such payment in good faith and gave appellant credit therefor, but later was compelled by a judgment of the federal court to surrender to a creditor of the sheep company the entire payment so received. The court concluded that the suit was not barred by the statute of limitations, and entered judgment for respondent accordingly. Appeal was perfected March 24, 1930. The brief filed June 25, 1931, contained no specifications of error whatever. Respondent's brief, served and filed July 23d following, after arguing the merits, concludes with the submission that the judgment should be affirmed "for the reason that the appellant has not assigned or specified any errors whatever to justify a review by this court." Notwithstanding this direct reference to his noncompliance with an elemental rule of appellate practice, appellant made no move to correct his brief until on October 20th at the hour of the hearing. At that time, he lodged a specification predicating error by the general statement:

"The Court erred in finding for respondent and awarding judgment against appellant because same are not supported by the evidence and are against the law, and because the pleadings and the evidence conclusively show that the action was barred by the statute of limitations, in that in order to remove the bar of the statute the respondent was obliged to and did rely solely on an illegal transaction to remove said bar in which illegal transaction respondent participated knowing same to be illegal," leaving it to the court to wade through the record to ascertain in what respect the evidence might have failed and what might have been the details of the particular transaction. Again, as ofttimes before, we wearily announce that...