Small v. Lowrey

• Decision Date: 27 May 1912
• Citation: 148 S.W. 132,166 Mo. App. 108
• Parties: SMALL v. LOWREY.
• Court: Missouri Court of Appeals

148 S.W. 132

166 Mo. App. 108

SMALL v. LOWREY.

Kansas City Court of Appeals. Missouri.

May 27, 1912.

Rehearing Denied June 17, 1912.

1. CONTRACTS (§ 129) — ILLEGALITY — CONCEALING WITNESSES.

Under Rev. St. 1909, § 4352, which makes it an offense to deter a witness from appearing in any civil or criminal cause, a contract to pay plaintiff for services in keeping a prosecutrix, in an action for criminal assault, beyond the state while the prosecution was pending is illegal and unenforceable, even if plaintiff was deceived into believing that the action was civil, and not criminal.

2. CONTRACTS (§ 129)—ILLEGALITY.

A contract for services in inducing a minor to leave the state, to prevent her from appearing to set aside a release of claim for civil damages, is void, as against public policy.

3. CONTRACTS (§ 102) — VALIDITY—KNOWLEDGE OF ILLEGALITY.

An entire claim, under a contract for services, is invalidated by continuing in the service after acquiring knowledge of its unlawful character, though a large part of the service was performed innocently.

4. CONTRACTS (§ 350) — PERFORMANCE OF SERVICE—EVIDENCE—SUFFICIENCY.

Plaintiff is not entitled to recover on a contract for services in procuring the release of a cause of action, in the absence of proof that he ever produced the release, though he claims to have procured one.

Appeal from Circuit Court, Jackson County; W. A. Powell, Judge.

Action by Ben W. Small against Ernest Lowrey. Judgment for plaintiff, and defendant appeals. Reversed.

Conkling, Rea & Sparrow, of Kansas City, Craven & Moore, of Excelsior Springs, and L. H. Waters, of Kansas City, for appellant. Ben T. Hardin and W. W. Calvin, both of Kansas City, for respondent.

ELLISON, J.

Plaintiff's action is based on a contract with defendant, whereby the latter was to pay him for certain services rendered as a detective. He recovered a judgment in the trial court.

It appears that defendant's father, James L. Lowrey, residing in Boone county, was accused of a criminal assault upon Fanny Sexton, a young girl in that county, under 18 years of age. Defendant, a physician residing in Excelsior Springs, took an interest in his father's behalf and, as plaintiff alleges, engaged the latter's services, as a detective, to assist his father. Originally both defendant and his father were made parties; but the case was dismissed as to the latter.

The petition is in two counts, and purports to be based upon two contracts. The first that defendant represented that Fanny Sexton had instituted a civil suit for damages in the circuit court of Boone county, and that he engaged plaintiff to effect a settlement and release of the case; that plaintiff did procure a written release from the girl, for which service defendant agreed to pay him $450 and his expenses, on which latter item, amounting to $66.40, there had been paid $65, leaving a total of $451.40 still due. The second count is for services in preventing this settlement from being set aside, and in preventing the action for damages mentioned in the first count from being tried in the Boone county circuit court, by getting the girl out of the way, for which service defendant agreed to pay him $10 per day for two weeks, and that at the expiration of two weeks defendant engaged him to continue his service in preventing the action from being tried by keeping the girl hidden, for which he was to pay him the reasonable value of his services, together with all expenses attending the service; that the service last mentioned continued for near three months, and was worth $10 per day, amounting to $840; and that his expenses were $396.56, on which latter item there had been paid $190.

It appears from the evidence that on September 28, 1909, the date plaintiff was employed to procure a settlement, no civil action had been instituted, and that there never has been. The action was a criminal charge set forth in an indictment for rape. But plaintiff claims not to have known this until about the 1st of November, 1909. At any rate, he procured a written release from the girl, for $50, about two weeks after his employment. He testified: That defendant then informed him that he learned the girl was under 18 years of age, and that an attempt would be made to set the release aside and go on with the case; wherefore it was thought best to take the girl away and secrete her until the case was called at the approaching term of court, when, if she were absent and her whereabouts unknown, it would necessarily be dismissed. That, in pursuance of this desire, plaintiff agreed to get her out of the way, for which service he was to be paid $10 per day and his expenses. He thereupon took her to the state of Kansas, where he paid her board and other expenses, as well as $9 per week as wages for agreeing to keep away. It then developed that the case was not dismissed at the term it was expected to be, and plaintiff testified he was instructed to keep the girl secreted, and that he did so up to the 8th of January, 1910.

As stated above, no civil action had been brought by the girl, and the prosecution instituted in court was an indictment for rape. Plaintiff testified that he was misled; that he all along believed, as defendant had told him from the start, that it was a civil action, and he did not know there was a criminal prosecution. He, however, became aware, on November 2, 1909, from statements in a letter, that it was a criminal case, and, again, from a meeting with defendant on November 22d, he again came in possession of facts from which he said "he was thoroughly satisfied" that it was a criminal, instead of a civil, case. Then, again, on the 22d of...