Wenninger v. Mitchell
| Decision Date | 15 November 1909 |
| Citation | 122 S.W. 1130,139 Mo.App. 420 |
| Parties | DORA WENNINGER, Appellant, v. D. B. MITCHELL et al., Respondents |
| Court | Kansas Court of Appeals |
Appeal from the Schuyler Circuit Court.--Hon. Nat. M. Shelton Judge.
REVERSED AND REMANDED (with directions).
Reversed and remanded.
Thos L. Buford and Fogle & Fogle for appellant.
Contracts the consideration of which is the procurement of marriage, are void. Anson on Contracts, p. 247; 9 Cyc. 518; Lawson on Contracts, sec. 321; 2 Pomeroy's Eq. Juris., sec. 931; 2 Parsons on Contracts (5 Ed.), 74; 3 Addison on Contracts, sec. 1349; In re Grobe, 102 N.W. 804; Helen v. Anderson, 33 Ill.App. 506; Jangraw v. Perkins, 76 Vt. 127, 104 A. S. R. 917. The contract, though executed, will be set aside and the parties restored to their original position. Duval v. Wellman, 124 N.Y. 156; Place v. Conklin, 51 N.Y.S. 407; S. C., 54 N.Y.S. 532; 9 Cyc. 556, 557, sec. (f). These parties were not in pari delicto. Duval v. Wellman, 124 N.Y. 156. Where parties to a contract are in pari delicto, one of them shall not avail himself of the fraud in the contract to prevent the other from recovering his share of the profits, after the contract is executed, if the other can make out his case otherwise than through the medium and by the aid of the illegal transaction to which he himself was a party. Green v. Corrigan, 87 Mo. 370; Roselle v. Beckemeir, 134 Mo. 391; 9 Cyc. 556, 557, sec. (f). The rule that no particeps criminis can maintain an action founded on an illegal or immoral contract does not prohibit the vendor of land, where the sale is illegal and the conveyance void, from recovering the land, as he recovers it by virtue of his prior untainted legal title, against which the defendant cannot set up a title void by law. 9 Cyc. 556, 557, sec. (f). To the rule that, the courts will leave where it finds parties to illegal or immoral contracts, there are some exceptions: Where public policy requires the intervention of the court; where the parties are not in pari delicto; where the law which makes the agreement unlawful was intended for the special protection of the party seeking relief; where the illegal purpose has not been consummated; where the party complaining can exhibit his case without relying upon the illegal transaction. 9 Cyc. 550-557.
Plaintiff instituted this action by filing a bill in equity praying for dissolution of a partnership with defendants and for an accounting. The case was referred to a referee who took the evidence brought forward by the parties and made his finding for the plaintiff. Exceptions were taken to his report, which the court sustained and entered a judgment for the defendants.
It appears that plaintiff was a widow and that her name was Skinner. That her husband died in 1905, and that afterwards, in the latter part of the summer or early fall of 1906, she returned to Queen City, Schuyler county, Missouri (the seat of this controversy), where she had formerly lived and went to board with defendants, who are husband and wife. Defendant D. B. Mitchell was engaged in the livery stable business in that town and shortly after plaintiff came to his house he sold her a half interest in the business and livery stock for five hundred dollars in cash.
It seems that plaintiff desired to get married again and was so anxious in that regard that she advertised for a husband in the newspapers through a matrimonial agency. In this way, one Wenninger, of Lincoln, Nebraska, learned of her and he too, wanting to get married, entered into a correspondence with plaintiff which quickly resulted in an engagement and shortly thereafter their marriage. In thus getting a husband plaintiff wittingly or unwittingly laid the foundation for the defense to this action. Defendants admit that plaintiff purchased one-half interest in the livery stable for five hundred dollars and became a partner in the business. But they claim that she said to Mrs. Mitchell before she purchased the interest in the livery stable that she would pay well if we "would assist her in getting a man." That after she purchased of them the interest in the stable "she said if we would help her get this man she would give us her interest in the barn for our service." Defendants say they carried out their part of the agreement and that plaintiff's interest in the barn became theirs. We will examine the record to see what substance of law or fact there may be in this claim.
In the first place we find the work claimed to have been performed by defendants for plaintiff to be of such trifling nature as not to deserve serious consideration. It consisted principally in writing two letters. The time covered by this "service" was between the middle of September and the 24th of October, for the first letter was written two or three weeks after plaintiff arrived at their house, which was the latter part of August, and the last one must have been prior to October 24th, as that was the day of the marriage. Thus, some time within the space of four or five weeks, Mrs. Mitchell wrote two letters at plaintiff's dictation. The record does not disclose how long a time this took, but the simple matter of writing two letters could not have taken long. Suffice it to say we cannot bring ourselves to believe the task was worth one-half of a livery stable for which plaintiff had just paid defendants five hundred dollars.
But defendants will say that the foregoing was not all the service they performed "in getting a man" for plaintiff. Their further claim came about in this way: It seems that Wenninger, recognizing the custom in such affairs, endeavored to seek plaintiff by going to her and having the wedding at her home. But counsel say the "Fates" interfered, and as he was on his way to the train in Lincoln, he met with an accident on a street car, the nature of which is not disclosed. However he immediately instituted an action for damages against the street railway and wrote to plaintiff the reason for his failure to appear at her home. It was then arranged by plaintiff that she would go to Lincoln and the ceremony could be performed notwithstanding the misfortune. Plaintiff invited defendants to the wedding and Mrs. Mitchell straightway accepted, or at least immediately expressed a desire to go, but Mr. Mitchell gave evidence of some hesitation. He said he was "short of money." At any rate, when he was informed of a matter to be presently mentioned, he too accepted and all three started for the wedding. It is for thus attending the wedding that the additional service is made up. It is so out of the ordinary for one to charge for an acceptance of an invitation to a wedding that we find difficulty in allowing that it should be done in this instance. The record is silent as to any inconvenience to defendants. It does show that Mrs. Mitchell had never traveled much, and when we reflect on the pleasure it ordinarily must be to be favored with an invitation to a trip from a country village to a distant city to attend a wedding, and, as they said, partake of a "wedding feast," we are again loath to allow any charge in a proceeding in equity.
But this is not all to be said, on this head, in plaintiff's behalf and defendants condemnation. Plaintiff paid the expenses of Mrs. Mitchell and gave Mr. Mitchell a new bedstead. When he learned that plaintiff was to pay his wife's expenses for the trip and to give him her new bedstead, his objection softened and the hesitation noted above faded away. These considerations make it a matter of some wonder how this branch of the defense, so extraordinary in its nature, could have been set up.
Yet, notwithstanding the foregoing considerations, it must be conceded that the record discloses some evidence of an agreement on plaintiff's part, though she testified that there was not. For the reasons following it will not be necessary for us to say whether she did, in fact, promise to pay for what was not much more than imaginary service.
The defense is based on an unconscionable claim. In Ball v Reyburn, 136 Mo.App. 546, 118 S.W. 524, we approvingly cited this definition of an unconscionable contract from Chesterfield v. Jansen, 2 Ves. 155: It is a bargain "such as no man in his senses, and not under a delusion, would make on the one hand, and as no honest and fair man would accept on the other." In passing on the utter disproportion between the service said...
To continue reading
Request your trial