Phelps v. Manicko

• Decision Date: 18 June 1906
• Citation: 96 S.W. 221,119 Mo. App. 139
• Parties: PHELPS v. MANICKO et al.
• Court: Missouri Court of Appeals

96 S.W. 221

119 Mo. App. 139

PHELPS v. MANICKO et al.

Kansas City Court of Appeals. Missouri.

June 18, 1906.

1. CHAMPERTY AND MAINTENANCE—CONTRACT TO CONDUCT LITIGATION.

Where plaintiff, who was not an attorney, agreed to take up W.'s cause of action against defendant, employ lawyers, get up evidence at his own expense, and conduct the litigation to a termination, the contract was void for maintenance.

2. CONTRACTS—ILLEGALITY OF CONSIDERATION — AGREEMENT VOID FOR MAINTENANCE — BILLS AND NOTES.

Defendant, after liberally watering his stock of whisky, traded his saloon to W. for a farm, after which plaintiff, who had no connection with the trade, agreed with W. to secure a rescission for $1,000, but before doing anything plaintiff contracted with defendant to refrain from taking up W.'s cause for $625, for $325 of which he accepted defendant's note sued on. Held, that, plaintiff's agreement with W., being void for maintenance, the surrender thereof was no consideration for the execution of defendant's note.

Appeal from Circuit Court, Osage County; R. S. Ryors, Judge.

Action by James L. Phelps against W. C. Manicke and others. From a judgment for plaintiff, defendants appeal. Reversed.

W. S. Pope, W. L. Vaughan, and W. L. Pinnell, for appellants. J. W. Vosholl and Monroe & Zevely, for respondent.

ELLISON, J.

Defendant gave to plaintiff his promissory note for $325, and upon refusal to pay it, plaintiff brought the present action and recovered judgment in the trial court.

It is rather a remarkable case. It appears that defendant owned a saloon in the town of Belle, Maries county, and one Jake Weller owned a farm in that county. They made a trade or exchange of the saloon for the farm. It seems preparatory to the trade defendant liberally mixed water with his stock of whisky and for that, and other reasons, Weller, as the lawyers say, wanted to rescind; but he himself expressed his desire rather more forcefully on the witness stand, by testifying that being drunk when he made the exchange he wanted to "rue back on the trade." It became known in the town of Belle that Weller was dissatisfied with his bargain, and wanted it undone. He spoke of his desire to this plaintiff, who, though not a lawyer, readily entered into an arrangement whereby, for $1,000 remuneration, he would establish the status quo between the parties; or, as he more intelligibly explained to Weller, he would put him back on his farm, and defendant back in his saloon. It appears that this arrangement to "break up the trade" came to defendant's ears, and he became alarmed for the safety of his profit in having traded water for land. It does not appear clearly just how plaintiff and defendant came together, nor is it clear that plaintiff took part in having the story of his engagement with Weller to interfere with plaintiff's affairs, come to the knowledge of the latter. At any rate plaintiff was not at all averse to the story reaching defendant and, apparently, he did not sympathize with defendant's alarm, for he added thereto somewhat by suggesting that he purposed having him "pulled" by the federal court for adulterating whisky in violation of the revenue law. Defendant now became nervously solicitous as to plaintiff's getting into the affair and began making offers of money to him to stay out. He first offered $28 and pasture for some horses, which plaintiff rejected as "no inducement at all." Defendant then sent for him and offered him $250, which he rejected, and they separated. Again they met, and defendant offered him $625. He took this offer under...