Menger v. Thompson

• Decision Date: 27 March 1922
• Docket Number: 22219
• Citation: 128 Miss. 455,91 So. 40
• Court: Mississippi Supreme Court
• Parties: MENGER v. THOMPSON

91 So. 40

128 Miss. 455

MENGER v. THOMPSON

No. 22219

Supreme Court of Mississippi

March 27, 1922

SALES. Sales of furniture on credit to keeper of house of ill fame held contrary to public policy.

Where a merchant sells furniture on credit to a keeper of a house of ill fame for use in such business, with knowledge of the character of the buyer and the use it is to be put to, where the evidence shows that there were no other means with which to pay for the same than the proceeds of the illegal business of the buyer, such contract is contrary to public policy, and the creditor cannot maintain an action to recover the property or for the value thereof.

HON. E L. BRIEN, Judge.

APPEAL from circuit court of Warren county, HON. E. L. BRIEN, Judge.

Action by W. O. Menger against Marie Thompson. Judgment for the defendant, and the plaintiff appeals. Affirmed.

Judgment affirmed.

Bryson & Katzenmeyer, for appellant.

We submit that the bare facts that goods are sold to a prostitute, and that she uses the goods in a house of prostitution does not bar the seller from collecting the purchase price of the goods or any part thereof from the purchaser even tho she be a prostitute. Something more must be shown in order to bar an fiction by the seller. The seller must in some way be connected with the immorality either as a participant therein or as an aider and abetter therein. This far all the authorities seem to agree and we shall not for that reason offer authority to support the argument.

Some of the court, however, have gone so far as to hold that very slight participation bars an action, that even the mere bare facts of knowledge by the seller that the purchaser contemplates using the goods for immoral purposes is sufficient to put the seller on notice and that a sale made after such knowledge will not be enforced, but the great weight of authority is contrary to this view and holds that the seller must actively participate in the immorality, or willfully aid in and abet the same.

The supreme court of Mississippi has repeatedly adopted the second line of authorities and held with the weight of authority on this point as we shall show, tho some recent decisions fail to make the distinction quite clear. The case at bar discloses no participation in the immorality, nor active aid or abetment therein. The testimony is not clear that appellant even knew of the immoral character of appellee, nor that she intended using the goods in a house of prostitution until some time after the first purchases had been made, and it is clear that he never at any time participated in the immorality or actively aided or abetted it, tho it is reasonably clear that the appellant, before the last purchases were made, did know that appellee was a prostitute, and was conducting a house of prostitution.

If appellant is defeated in this action it must be on the bare knowledge that the goods were being put to an immoral use by the appellee.

The court below construed the law to be that bare knowledge by a seller that the purchaser desired to put the goods to an immoral use, and that the purchaser did so use them was sufficient to bar an action for the purchase price. Did the court below err in this? That he did we shall now argue under a separate heading.

We submit that bare knowledge on the part of the seller of goods that the purchaser is a prostitute and intends to use the goods sold her in a house of prostitution is not sufficient to bar an action for the purchase price. 13 C. J. 517, par 476. As supporting the English rule, cases are cited from Alabama, Iowa, Maine, Massachusetts, Vermont and Virginia only six in number. As supporting the United States Rule cases are cited from the federal courts and the following states: Arkansas, Colorado, Georgia, Indiana, Kansas, Kentucky, Louisiana, Maryland, Michigan, Minnesota, Mississippi, Missouri, Nebraska, Nevada, New Hampshire, New York, North Carolina, North Dakota, Pennsylvania, Rhode Island, South Carolina, Tennessee, Texas, and Washington, twenty-four states and all the federal courts.

This leaves eighteen states which had not passed on the point at the time 13 C. J. was written, viz: Arizona, California, Connecticut, Delaware, Florida, Idaho, Illinois, Montana, New Jersey, New Mexico, Ohio, Oklahoma, South Dakota, Utah, West Virginia, Wisconsin, and Wyoming.

In 15 Ency of Law (2 Ed.), 986, it is said: "To render a contract, innocent in itself, illegal on the ground that it was entered into to further an illegal purpose, it is held that such intent must have been mutual. Where the party who is ignorant of the illegal purposes of the other party discovers such purpose before the contract has been executed, it has been held that he may rescind the contract without liability in damages as for a breach.

The rule laid down by the weight of authority, especially in the United States, is that though the contract is entered into by one of the parties for the furtherance of an illegal purpose, it is held that such intent must have been mutual. Where the party who is ignorant of the illegal purpose of the other party discovers such purpose before the contract has been executed it has been held that he may rescind the contract without liability in damages as for a breach.

The rule laid down by the weight of authority, especially in the United States, is that though the contract is entered into by one of the parties for the furtherance of an illegal purpose, the contract will not be rendered illegal as to the other party, though he had knowledge of such illegal purpose, provided he does nothing in furtherance thereof. 6 R. C. L. 695, par. 102, 9 Cyc. 571; the decisions by the supreme court of Mississippi are in line with the foregoing texts: Walker v. Jeffries et al., 45 Miss. 160; Armstrong v. Toley, 11 Wheat. 258; Kreiss v. Seligman, 9 Barb. 439; Martin v. Brooks, 2 Wall. 70; Gilliam v. Brown, 43 Miss. 641; Contithan v. Insurance Company, 91 Miss. 383; Aetna Insurance Company v. Heidelberg, 112 Miss. 46; Armstrong v. Toler, 11 Wheat. 258, 6 L.Ed. 468.

Another Mississippi case along the same line is that of Lunderbach Plumbing Company v. Nellie Stein, 113 Miss. 475; Insurance Co. v. Heidelberg, 72 So. 852; Armstrong v. Toler, 11 Wheat. 258, 6 L.Ed. 468; Hanover National Bank v. First National Bank, 109 F. 421, 48 C. C. A. 482; Armstrong v. Toler, 11 Wheat. 258, 6 L.Ed. 468; Ingram v. National Salt Co., 130 F. 676, 65 C. C. A. 54; Jenson v. Toltec Ranch Co., 174 F. 86, 98 C. C. A. 60; Mechanics Insurance Company v. Hoover Distilling Company, 102 F. 590, 105 C. C. A. 128; Jenson v. Toltec Ranch Co., 174 F. 86, 98 C. C. A. 60; Armstrong v. Toler, 11 Wheat. 258, 6 L.Ed. 468; Armstrong v. American Exchange Bank, 133 U.S. 433, 33 L.Ed. 747; Hanover Natl. Bank v. First Nat'l Bank, 109 F. 421, 48 C. C. A. 482.

The case at bar taken most strongly against appellant shows he knew the appellee was conducting a house of prostitution and that the goods sold and delivered to her were for use in such house, but this does not preclude recovery unless it further appears (which it does not) that appellant's purpose in making the sales or his inducement to make them was to foster and encourage prostitution.

There is not a scintilla of testimony, however, to support the view that appellant had any desire to aid, foster or encourage the immoral business. He had a furniture store, he was anxious to sell furniture and he said never considered a customer's morality or immorality, or where the goods were to be delivered in making sales whether in a moral or immoral neighborhood. In this who can say but that he told the truth? Having been in the furniture business in Vicksburg, since 1879, his day for excitement over possible and attractive prospects had passed into the "sear and yellow leaf" and matured into business for revenue only.

Let me now call attention to two other cases by this court on the point in question. Mitchell v. Campbell, 111 Miss. 806 and 72 So. 231; Ham v. Wilson, 86 So. 298, 123 Miss. 510.

In Ham v. Wilson (86 So. 298), Judge COOK stated the facts as follows: "We think the record shows beyond question that the sellers knew, at the time of the sale of the goods that the items sold by them were bought for the purpose of furnishing a house of ill-fame, and the jury were fully justified in so finding. One of the members of the firm selling...