Munday v. Whissenhunt

• Decision Date: 28 February 1884
• Citation: 90 N.C. 458
• Court: North Carolina Supreme Court
• Parties: J. F. MUNDAY v. WHISSENHUNT & WHISSENHUNT, Executors.

90 N.C. 458

J. F. MUNDAY

v.WHISSENHUNT & WHISSENHUNT, Executors.

Supreme Court of North Carolina.

February Term, 1884.

CIVIL ACTION tried at Fall Term, 1883, of CATAWBA Superior Court, before Graves, J.

The plaintiff brought this action to recover compensation for services rendered by him to David Whissenhunt, the testator of the defendants, under a contract in writing and under seal, of which the following is a copy:

“This day I, David Whissenhunt, do agree for said J. F. Munday, of Alexander county, to have one-half of whatever I may recover in the suit or secure in settlement, between me and W. C. Jones, for the services I have employed him to do for me in the suit, or in settlement between me and Jones; if I succeed in the recovery of the suit, or any part, he is to have the half of the land or pay from me for one-half of the worth of the land which is in dispute between me and Jones. If I fail, and save nothing, and Jones succeeds, I am not to pay him anything for his trouble or service. Given under my hand and seal, this 8th of May, 1880.” (Signed and sealed by David Whissenhunt, and witnessed).

On the trial the plaintiff put this contract in evidence, and offered proof going to support the allegations contained in the complaint. After all the evidence had been introduced, the court held that upon the whole case the plaintiff was not entitled to recover, and instructed the jury to find a verdict for the defendants. The plaintiff excepted generally to this decision of the court, but assigned no special grounds of exception. The jury rendered a verdict as instructed, and the court gave judgment for the defendants. Thereupon the plaintiff appealed.

Mr. M. L. McCorkle, for plaintiff .

Mr. L. L. Witherspoon, for defendants .

MERRIMON, J.

As no special grounds of error are assigned in the record, it becomes necessary to determine whether or not, in any view of the whole record, the plaintiff was entitled to recover. His counsel insisted in the argument before us, that the allegations in the complaint constituted a good cause of action, and the defendants having denied the same, the evidence introduced on the trial fully proved them, and, therefore, the court erred in holding that the plaintiff could in no wise recover.

It is a clear principle of law, that an engagement, whether under seal or by parol, to do an immoral act or service, or such acts as contravene the settled policy of the law, cannot be upheld as a binding contract, nor can the plaintiff in an action recover compensation for services rendered under or in pursuance of such engagement. The sound maxim of the common law is, “ ex turpi contractu non oritur actio.” Whatever contravenes sound morality, or the policy of the law, vitiates and renders void any contract or engagement into which it may enter.

In our judgment the contract sued upon in this case is illegal and void, because it stipulates for a service to be performed by the plaintiff that the law forbids, upon grounds of public policy, and denominates maintenance and champerty.

One Jones had brought his action in the superior court of Alexander county against the testator of the defendants, to recover a tract of land. The plaintiff in this action was in no way a party to or interested in that suit. He was a stranger to it, and not related to the defendant therein. He was not a...