Schultz v. Culbertson
| Citation | 1 N.W. 19,46 Wis. 313 |
| Parties | SCHULTZ v. CULBERTSON |
| Decision Date | 04 March 1879 |
| Court | Wisconsin Supreme Court |
APPEAL from the Circuit Court for Outagamie County.
The facts of the case, as they appear from the pleadings and evidence, are as follows: The defendant, returning home from a temporary absence, found the son of the plaintiff upon his premises. The defendant's family were absent, and he claims that he found the boy concealed in his house. He detained the boy, and sent for the plaintiff. He told the plaintiff that his house had been broken into several times and property stolen therefrom; he charged the boy with the crime, and threatened to prosecute him therefor. To avoid the disgrace of the prosecution, the plaintiff gave the defendant his note for $ 250, due in one year, in consideration whereof the defendant agreed not to prosecute the boy. This was in October or November, 1875. In January, 1877, the plaintiff paid the note. He brings this action to recover back the money thus paid.
On the trial, the plaintiff testified that he never believed his son guilty of the crimes charged against him. The defendant testified that his house had been broken into, and property stolen therefrom on different occasions, when he and his family were absent; and that, on the occasion first above mentioned, he found the boy concealed in the house, and saw indications that he entered through a window. Both parties testified to the defendant's agreement not to prosecute the boy.
Verdict and judgment for the plaintiff for the sum paid on account of the note and interest. Defendant appealed from the judgment.
Judgment reversed and cause remanded for new trial.
For the appellant, there was a brief by George H. Myers, and oral argument by Wm. Kennedy.
H. C Sloan, for respondent.
The agreement not to arrest and prosecute the plaintiff's son for the crime which the defendant charged he had committed, was unquestionably illegal and void, in that it interfered directly with the course of public justice, and was therefore against sound public policy. Such agreement was fully executed by the giving of the note in consideration thereof, and its payment; and by the failure of the defendant to cause the arrest and prosecution of the boy. The undisputed evidence shows that the crime had been committed, and the testimony of the defendant tends to show that the boy committed it. If the parties to this illegal agreement stood on an equal footing when they made it--if there was no duress or other circumstance which placed the plaintiff in the attitude of a sufferer rather than a wrongdoer,--the law will not assist the plaintiff to recover back the money which he has voluntarily paid in execution of it. Miller v. Larson, 19 Wis. 463. In such case it is quite immaterial that the plaintiff did not believe his son guilty of the crime charged. That is a fact to be considered on the question of duress (Osborn v. Robbins, 36 N.Y. 365), but not on the question of the illegality of the contract. The crime having been committed, and the boy being charged with having committed it, and his arrest therefor threatened, a contract to forbear prosecution is illegal, no matter how sincerely the plaintiff may have believed his son innocent.
The learned circuit judge charged the jury, in substance, that such a contract is illegal and void, but that if the plaintiff believed his son innocent of the crime, he might recover the money paid by him pursuant to the illegal contract. We understand the instruction to have been given without reference to the question of duress--that is to say upon the hypothesis that the parties to the contract...
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