Tandy v. Elmore-Cooper Live Stock Commission Co.

• Decision Date: 08 May 1905
• Citation: Tandy v. Elmore-Cooper Live Stock Commission Co., 87 S.W. 614, 113 Mo. App. 409 (Kan. App. 1905)
• Parties: A. H. TANDY, Respondent, v. ELMORE-COOPER LIVE STOCK COMMISSION CO., Appellant
• Court: Kansas Court of Appeals

87 S.W. 614

113 Mo.App. 409

A. H. TANDY, Respondent, v. ELMORE-COOPER LIVE STOCK COMMISSION CO., Appellant

Court of Appeals of Missouri, Kansas City

May 8, 1905

November 28, 1904;

113 Mo.App. 409 at 422.

Original Opinion of November 28, 1904 and May 8, 1905, Reported at 113 Mo.App. 409.

Judgment reversed and cause remanded.

ELLISON J. Broaddus and Johnson, JJ., concur.

OPINION ON REHEARING.

ELLISON J.

Plaintiff insists that since there was an arbitration of the differences existing between the parties that the award in his favor, and execution of the note in compliance therewith, had the effect of eliminating the question of illegality of consideration in the use of the public lands. We do not concur in that view. The question was asked and answered in the following paragraph: "But can an award springing out of an illegal consideration, which no court can enforce, stand on any higher ground than the contract itself? Is the contract purged of its illegality by the award? We think not. And we apprehend that no authority can be found that goes to this extent." [Fain v. Headerick, 44 Tenn. 327.] And it was said in Hall v. Kimmer, 61 Mich. 269, 28 N.W. 96, that "a claim being illegal and absolutely forbidden by statute could not lawfully be made the subject of arbitration." And so, in Benton v. Singleton, 114 Ga. 548, 557, 40 S.E. 811, the court said: "An award depends altogether for its force and validity upon a contract to be bound thereby, made by the person against whom it is returned. A contract to pay an illegal demand in the event an arbitrator shall say it is just, is no more binding than would be a contract to pay it evidenced by a bond or promissory note. The form which a contract of this nature assumes in no wise affects the question of its validity."

The weight of authority supports those...