Pfeuffer v. Maltby

• Citation: 54 Tex. 454
• Decision Date: 11 March 1881
• Docket Number: Case No. 543.
• Parties: GEO. PFEUFFER v. H. A. MALTBY.
• Court: Supreme Court of Texas

54 Tex. 454

GEO. PFEUFFER

v.H. A. MALTBY.

Case No. 543.

Supreme Court of Texas.

Mar. 11, 1881.

OPINION TEXT STARTS HERE1. CHARGE OF COURT--PRACTICE.

A charge of the court will not be considered on appeal unless there be a statement of facts in the record, except in a case where the pleadings contain matter which shows the charge to be necessarily erroneous.

2. CONTRACT--PARTNERSHIP--PUBLIC POLICY.

Although a contract of partnership may be illegal, it does not follow that it is illegal or immoral for the parties to it, to fairly adjust the profits and losses that have resulted from it.

3. SAME.

After a partnership confessedly against public policy has been carried out, and money contributed by one of the parties has passed into other forms, a partner in whose hands the profits are, after the results of the partnership enterprise are completed, cannot refuse to account for and divide on the ground of the illegal character of the original contract.

ERROR from Nueces. Tried below before the Hon. T. C. Barden.

Suit by the appellant against the appellee, instituted January 15, 1866, for his partnership interest in the proceeds of their copartnership business as manufacturers of tinware, and also for the value of a buggy and harness sold by the plaintiff to the defendant, of the value of $50, on separate individual account. The plaintiff alleged that the partnership was entered into in the year 1863, stating the terms thereof; and in an amended petition attached a bill of particulars of items in support of his cause of action, and also added to the original cause of action an account against the defendant, an additional individual account in his favor, for goods, wares and merchandise sold and delivered, amounting to $450. The aggregate claim of the plaintiff on his several causes of action was one thousand dollars. The plaintiff further amended his petition, and in effect alleged that the items of private account between himself and defendant were used for the benefit of the partnership, and that the same should be treated as contributions by him thereto, and credited to him accordingly in the partnership account in the settlement thereof.

The defendant answered by a general denial, plea in set-off and in reconvention, that the purpose of the partnership was to enable plaintiff and defendant to realize and obtain Confederate treasury notes, and carry on an illegal traffic thereby during the war, by exporting cotton to Mexico, and bringing in return from Mexico divers articles in aid of the wants of the people of Texas. The defendant filed afterwards a plea, which is referred to in the assignment of errors as defendant's “last plea,” the purport of which was to set up the defense that the partnership was formed during the war between the Confederate States and the United States government, for the purpose of aiding the former by furnishing manufactured tinware; which services thus to be rendered were accepted in lieu of the military services of the plaintiff and defendant; and that plaintiff used the Confederate money received by him from the sale of the tinware to purchase cotton, which he shipped into Mexico and sold for specie. All of which he alleged was contrary to the public policy of the United States and against good morals.

During the progress of the cause the matters in dispute were submitted to an auditor, H. A. Gilpin, who, after hearing the proofs, returned into court his auditorial report. The defendant filed a motion to exclude the report of the auditor on several grounds, among which the principal were, that it was “excessive and oppressive, and not in accordance with the testimony adduced before the auditor.” Also for the alleged improper exclusion of evidence offered to the auditor, tending to show that the plaintiff was, as alleged in the plea, engaged in aiding the enemies of the United States government; that the conclusions of the auditor upon the evidence were incorrect, and that the proceedings before him show that the parties to this suit were, at the time of the accrual of plaintiff's cause of action, engaged in rebellion, and that the vouchers offered by the plaintiff to establish his claim showed that it was against public policy. This motion was filed in 1871. The last plea filed by defendant, setting up the illegality of the contract of partnership by reason of its purpose to supply the Confederate government with tinware, etc., was filed three years afterwards.

The motion to set aside the report was determined at the October term, 1874, when the case was finally heard and disposed of, and was sustained, as appears by the entry from the minutes. There was no bill of exceptions showing the circumstances attending the ruling, nor grounds upon which it was based. The auditor's report and the proceedings had before him appear in the record; they constitute an extensive volume of matter, embracing much testimony heard by the auditor.

The plaintiff excepted to the sufficiency in law of the last plea filed by the defendant, which exception was overruled by the court. The cause was tried before a jury; verdict as follows: “We, the jury impaneled in the case of George Pfeuffer v. H. A. Maltby, find the tinshop contract illegal and no cause of action under same. We further find the defendant indebted to plaintiff in the sum of $207 coin, for articles of plaintiff converted to his own use, said $207 to draw interest at the rate of eight per cent. per annum from November 10, 1863, until paid. We further find the plaintiff indebted to the defendant in the sum of $250 coin, with interest at the rate of eight per cent. per annum from November 10, 1864, until paid.” The defendant remitted the balance found in his favor, and judgment was rendered against the plaintiff for costs.

The court charged the jury as follows:

“1. A contract in itself illegal cannot be made the basis of a legal action. In every lawsuit there must be exhibited a legal cause of action to entitle the party bringing the suit to maintain his cause in court. Courts will not enforce obligations entered into in violation of the law, or good morals, or public policy.

2. A contract of partnership designed to aid the Confederate government by furnishing field or camp equipage to its forces, is illegal and void, because it is contrary to good morals, public policy, and the law of the land. Courts have no power to adjudicate questions of supposed right arising under such a contract between the parties to it, because in law they are both wrong-doers.

3. If you find that in the formation of the contract of partnership, the plaintiff and defendant contemplated the securing of contracts from the Confederate government or its agents, for supplying its forces with articles of field or camp equipage, and if such was one of the main objects of the partnership, then such a contract is illegal and void, because contrary to good morals and public policy.”

The charge of the court proceeded then to instruct the jury as to the rules applicable to the evidence and the rights of the parties on the hypothesis, also, that the contract of partnership may have been formed for legal purposes, and not subject to the objection of illegality as being against good morals and public policy; thus presenting to them the determination of the question of fact under the evidence, whether the contract was valid or not. The court also charged the jury, in effect, that if they were satisfied that the contract of partnership was in itself a valid contract and for legitimate purposes, that although some of the transactions incidental to the carrying on of the business may have been had with the Confederate States government and its officers, and may have been in themselves illegal, yet in a settlement between the parties themselves, they would take such transactions into consideration in arriving at an adjustment of the account of the parties.

There was no motion for new trial; nor is there in the record any bill of exceptions or statement of facts.

The appellant assigned the following errors:

1st. The court erred in setting aside the report of the auditor.

2d. The court erred in overruling the exceptions of plaintiff to the last plea of the defendant.

3d. The court erred in giving the first, second and third instructions given by the court.

4th. And erred in rendering judgment for the defendant.

Lackey & Stayton, for plaintiff in error.

F. E. Macmanus, for defendant in error.

WALKER, COMMISSIONER.

Notwithstanding the incompleteness of the...