Schirm v. Wieman
| Citation | 63 A. 1056,103 Md. 541 |
| Parties | SCHIRM v. WIEMAN. |
| Decision Date | 14 June 1906 |
| Court | Court of Appeals of Maryland |
Appeal from Superior Court of Baltimore City; George N. Sharp Judge.
Action by Charles R. Schirm against Leopold H. Wieman. From a judgment for defendant, plaintiff appeals. Reversed, and new trial ordered.
Argued before McSHERRY, C.J., and BRISCOE, BOYD, PAGE, SCHMUCKER JONES, and BURKE, JJ.
J Cookman Boyd, for appellant.
German H. H. Emory and Alonzo L. Miles, for appellee.
This suit was instituted to recover upon a check given to the appellant by the appellee, under the circumstances which will afterwards be stated. The case was tried without the intervention of a jury, and but one exception was taken, and that was to the action of the court upon the prayers asked for by the respective parties. The court by its granted instruction, decided there was no sufficient evidence to entitle the appellant to recover. The judgment being against him, the appellant has appealed.
The following facts appear from the record: In July, 1904, the appellant and the appellee, together with two other persons all members of the Order of Elks, occupied the same room in a hotel in the city of Cincinnati, on the occasion of a convention of the members of that order. During the night, the watch of the appellee was lost, under circumstances which led to the belief that it had been stolen. Notice was given by the appellee of his loss, and extensive searches therefor were instituted by officers and detectives throughout the hotel, and elsewhere, without however obtaining any clue as to the manner of its mysterious disappearance. The appellee obtained no information about his watch, until the 7th of December, 1904. About that time the appellant had an interview with a Mr. Lyons, since deceased, a detective in the city of Baltimore. After pledging him not to reveal what he was about to tell him, Lyons told the appellant that the appellee could recover his watch, but would have to pay for it; that parties outside the state had communicated with him, and told him they would accept $350 for it. Neither at that time, nor subsequently, was the appellant informed who these persons were, and he never knew more of the matter than was communicated to him by the detective Lyons. It was shown that on that occasion Lyons employed the appellant "to communicate this information to Mr. Wieman, and, if Mr. Wieman was satisfied to accept the proposition, to turn over the money to Lyons and get the watch, and return it to Wieman." The appellant also stated in evidence, and there is nothing to contradict, or in any respect impeach it, that he knew of the loss of the watch, and believed it had been stolen; but he had no knowledge as to the fact or the manner of its loss, other than that which Wieman himself communicated to him. The appellant communicated this conversation to the appellee. At first, the latter refused to pay anything; but after several weeks he agreed to give $300 if the watch could be returned to him in good condition. The appellant so informed Lyons, and the sum was then agreed to. The appellant testifies without being contradicted that the state of his knowledge at that time was that "Mr Wieman agreed to pay the money; that the watch was at the time outside the state, and that it was sent for at his [Wieman's] request, through him," and "that Lyons would not have sent to New York for the watch, except Mr. Wieman had authorized me to tell him to have it sent for and that he (Wieman) would pay the $300 for it."
It was under these circumstances the appellee and appellant met on the 4th of April to carry out the understanding between them as to the return of the watch. Wieman's account of the conversation, is substantially as follows: Schirm asked Wieman, have you got the money? "Wieman replied he had a check," that he paid everything by check, and besides he said "suppose he gave a check and that fellow should pocket the money and keeps the watch too, he would have no redress" and "how do I know the watch is not all battered up." He, Wieman, then suggested to call in Hennegen & Bates and let them examine the watch. Schirm objected to this. Wieman then proceeds, "there is no shenanigan about this." I was to say this, and when I did make that remark I felt a little guilty because there was some scheme arranged before hand to have a deputy sheriff there, and to seize it," "but I told him there was no shenanigan about it." "I wanted the watch at any price." He (Schirm) said: In reference to the last statement, the testimony of the appellant is that he (Schirm) said: "I will go over to the Fidelity & Deposit Company and get it cashed, because I will have to deliver the cash for it." Upon this conversation the appellee delivered the check on the Drovers' & Mechanics' National Bank to the appellant, who indorsed it, and had it cashed at the Fidelity & Deposit Company after it was indorsed by Schirm. With the proceeds Schirm obtained the watch and delivered it to the appellee. The payment of it was the same day stopped by Wieman, and the appellant afterwards was compelled to make it good, and has not since been reimbursed. It is contended that under these circumstances there can be no recovery because the consideration of the check was the advancement of money to be used for an illegal purpose; that is, for securing the return by a thief of property alleged to have been stolen. It undoubtedly is a correct principle that one who furnishes funds to another who he knows or has every reason to believe intends to devote them to the perpetration of crime, and that they were procured for that purpose will not be allowed to maintain an action on his contract. He cannot do so, for the reason that, as was said by Judge Story in his Conflict of Laws, § 253: "No one can hesitate to say that such a man voluntarily aids in the perpetration of the fraud, and, morally speaking, is almost, if not quite, as guilty as the principal offender." Hanauer v. Doane, 79 U.S. 342, 20 L.Ed. 439. But is that the case...
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