Publishers; George Knapp And Company v. Culbertson
| Decision Date | 07 November 1910 |
| Citation | 133 S.W. 55,152 Mo.App. 147 |
| Parties | PUBLISHERS; GEORGE KNAPP AND COMPANY, Respondent, v. JERRY CULBERTSON et al., Appellants |
| Court | Kansas Court of Appeals |
Appeal from Jackson Circuit Court.--Hon. Thos. J. Seehorn, Judge.
REVERSED.
Judgment reversed.
L. N Dempsey and Charles W. Sloan for appellants.
(1) Plaintiff's petition stated no cause of action for the reason that it showed on its face that the contract relied on and for recovery in both counts of petition showed expressly that it called for work to be done on Sunday, which was in express violation of the statutes. See sec. 2240 and 2243, R S. 1899. The court will take judicial notice that the 12th and 19th of April, 1908, were both on Sunday. Taylor on Ev sec. 14; 8 Am. and Eng. Ency. Law (2 Ed.), 734; 17 Am. and Eng. Ency. Law (2 Ed.), 904; Bliss Code Pleading, sec. 191; Said v. Stormberg, 55 Mo.App. 441; Jordan v. Railway, 92 Mo.App. 84. And the objection that petition does not state a cause of action can be raised for the first time in the appellate court. Agricultural Association v. De Lano, 37 Mo.App. 284; Railroad v. Carlisle, 94 Mo.App. 166; Orchard v. Bank, 121 Mo.App. 338; Maginn v. Schmick, 127 Mo.App. 417. (2) The uncontradicted evidence in the case showed that the contract for the advertisement was performed on Sundays and was void. And the judgment should have been for the defendants; and it is immaterial whether the contract appeared void on the face of the petition or was shown by the evidence to be void. Sumner v. Summers, 54 Mo. 340; Rice Bros. v. Nixon, 93 Mo.App. 696. A contract is void when the consideration is illegal in whole or in part. Bick v. Seal, 45 Mo.App. 475; Mitchell v. Branham, 104 Mo.App. 487; Lane v. Logan Grain Co., 105 Mo.App. 221; Sawyer v. Sanderson & Thomas, 113 Mo.App. 245; Curry v. Lafon, 133 Mo.App. 181; Land Co. v. Manning, 98 Mo.App. 248; Tandy v. Commission Co., 113 Mo.App. 418. (3) In the case at bar the uncontradicted evidence is that at least the third and fourth editions of the St. Louis Republic were issued, printed and circulated after 12 o'clock on Saturday night, and were in fact printed and issued on Sunday in each case. The contracts in controversy were not apportionable. Billups v. Daggs, 38 Mo.App. 367; Friend v. Porter, 50 Mo.App. 89; Handy v. St. Paul Globe Pub. Co., 42 N.W. 872. (4) Any contract in violation of a criminal statute can neither be ratified nor enforced. Gwinn v. Simes, 61 Mo. 339; Tandy v. Commission, 113 Mo.App. 422; Lawson on Contracts, sec. 350. (5) Under a general denial it may be shown that the contract pleaded by plaintiff was illegal. Chapman v. Currie, 51 Mo.App. 40; McDearmott v. Sedgwick, 140 Mo. 183. (6) Plaintiff's petition and proof shows that plaintiff made a contract in violation of the criminal law of the State of Missouri, and that plaintiff carried out said contract in violation of law. Sec. 2240, 2243, R. S. 1899. (7) The courts will not aid a party in the enforcement of an illegal contract, but will leave them where it finds them. Atway v. Bank, 93 Mo. 485; Connor v. Black, 119 Mo. 142. (8) Plaintiff undertook not only to publish the advertisement in a Sunday issue, but to circulate said paper after being printed. The work undertaken to advertise for defendants was completed when printed, published and circulated among the people. It was done on Sunday. State ex rel. v. Johnson Co. Court, 122 S.W. 317; Handy v. St. Paul Globe Pub. Co., 42 N.W. 872.
Omar E. Robinson and H. H. McCluer for respondent.
(1) The partial abstract of the record filed herein by the appellants does not attempt to direct the attention of the court to any phase of the case, except that which bears on the question of the alleged illegality of the service performed for the appellants by the respondent. This partial abstract is sufficient for that purpose, and being the only point raised for the consideration of this court no additional abstract of the record is deemed necessary by the respondent and none is filed. (2) The question of the illegality of the respondent's acts in carrying out its contract with defendants was not properly brought to the attention of the court. The answer being simply a general denial. Sybert v. Jones, 19 Mo. 87; Sheffield v. Balmer, 52 Mo. 477; Gebson & Bros. v. Jenkins, 97 Mo. 42; McDermott v. Sedgwick, 140 Mo. 172; Russell v. Railroad, 83 Mo. 511; Ladd v. Clark, 42 Mo. 523. (3) No illegality shown by the evidence authorizing a finding on behalf of appellant. Sec. 2241, R. S. 1899.
Plaintiff, publisher of the St. Louis Republic, a newspaper of general circulation, brought suit against defendants to recover the contract price of advertisements it inserted for defendants in two Sunday issues of the newspaper. The petition is in two counts, each advertisement being pleaded as a separate cause of action. A jury was waived and the court, after hearing the evidence, rendered judgment for plaintiff on both counts. Defendants appealed and contend that the contracts for the advertising were void because they provided for the violation of the statute prohibiting labor on Sunday (sec. 2240, R. S. 1899). Plaintiff argues that the contracts did not require nor contemplate a violation of the statute, and, further that the issue of the validity of the contracts is not in the case since it was not raised in the pleadings.
It is alleged in the first count of the petition, "that heretofore and on or about the 8th day of April, 1908, the defendants engaged space in said St. Louis Republic for the insertion of an advertisement designed to acquaint the public with the character of the business in which the defendants were engaged; that the plaintiff accepted said offer to insert said advertisement, and in pursuance of said employment did on the 12th day of April, 1908, insert in the St. Louis Republic a large display advertisement setting forth the defendants' business in such manner and in such language as defendants desired, and as instructed by defendants." And in the second count,
Defendants demurred to each count on the ground that it did not state facts sufficient to constitute a cause of action and on the overruling of the demurrer answered with a general traverse.
The evidence of plaintiff shows that two orders were received from defendants for advertising in the issues of the newspaper published respectively on the 12th and 19th of April, 1908 (Sundays), and that the advertisements were inserted in all of the editions issued on those dates. It was the custom of plaintiff to issue four editions of the Sunday newspaper. The first edition was issued on the morning of the preceding Friday; the second went to press at six o'clock p. m. on Saturday; the third and fourth were the fast mail and St. Louis editions and went to press early Sunday morning. No Sunday labor was expended on the first two editions but on the last two the press, mailing and delivery work were performed on Sunday. This method of doing business was pursued on the dates under consideration.
Section 2240, Revised Statutes 1899, provides: "Every person who shall either labor himself, or compels or permits his apprentice or servant, or any other person under his charge or control, to labor or perform any work other than the household offices of daily necessity, or other works of necessity . . . on the first day of the week commonly called Sunday, shall be deemed guilty of a misdemeanor, and fined not exceeding fifty dollars." This is a criminal statute and the rule is too well settled to be a subject of controversy that a contract which requires or contemplates a violation of a criminal law in its performance must be pronounced void as being contrary to public policy and public morals. This rule is not disputed by counsel for plaintiff who contend that the contracts under consideration neither required nor contemplated the violation of the statute. The case of Sheffield v. Balmer, 52 Mo. 474, is cited in support of this contention. In that case it appears there were two editions of the paper, one dated Saturday, the other Sunday. Both were issued on Saturday and no Sunday labor was performed on either. The publisher sold papers at its office on Sunday but that act was properly held not to have been within the contemplation of the contracting parties. It was a purely...
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