« ΠροηγούμενηΣυνέχεια »
lish admissions was too vague and indeterminate to establish any fact whatever, even without the direct denial of appellant's cashier. It is clearly established by the evidence that the answer to the process of garnishment was legally and technically correct; that the mistake originated with appellee; also, that all money due W. G. Motley had been paid by appellant previous to the interview by the officers of appellee with Clinton, the cashier of appellant, and the knowledge on his part that W. G. Motley was the party intended. Under the facts and circumstances established, it would be illegal and clearly inequitable to compel double payment from appellant, and, in effect, make it responsible for the error or mistake of appellee. For the reasons given, the judgment will be reversed, and the cause remanded. Reversed.
(5 Colo. App. 441)
FEARNLEY v. DE MAINVILLE et al. (Court of Appeals of Colorado. Jan. 14, 1895.) CONTRACTS_VALIDITY-CONSIDERATION-PUBLIC
POLICY-ESTOPPEL. 1. An agreement by property owners and business men, in the immediate neighborhood of the post office, to pay the owners of the build. ing in which it is located a specified sum monthly for four years, in case the latter rent the building to the government for a nominal sum, in order to secure the retention of the office in that locality, is supported by sufficient consideration.
2. Such contract is not void, as against public policy.
3. A lease of a building to the government for post-office purposes, for a nominal sum, to induce it to locate the office in such building, instead of in some other part of the town where citizens are striving to have it located, is not contrary to public policy and void; especially in the absence of anything to show that such building is not the most convenient and desirable one for the purpose.
4. A person who agreed to pay the owners of a building a specified sum, to induce them to lease it to the government for the purpose of retaining the office in the neighborhood of the promisor's business, cannot, after having the benefit of such location of the post office, avail himself of the illegality of the lease as a defense against the enforcement of his agreement.
5. In an action by owners of a building to enforce a contract whereby defendant agreed to pay them a certain sum monthly, in consideration that they would rent it to the government for a nominal sum for a post office, defendant cannot set up as a defense that he signed the contract in consideration of an illegal agreement by one of plaintiffs, who was chairman of the board of county commissioners, that he would secure a reduction of defendant's taxes in an amount equal to the sum the latter agreed to pay plaintiffs.
Appeal from district court, Arapahoe county.
Action by Frank De Mainville and W. H. Brisbane against Joshua Fearnley. From a judgment for plaintiffs, defendant appeals. Affirmed.
R. H. Gilmore, for appellant. J. E. Havens, for appellees.
REED, J. Appellees, in 1888, were the owners of a building in Leadville that had been used as a United States post office previous to that time. The lease was about to expire, and it became necessary to make a new contract if the office was retained in the same building. The United States gov. ernment, feeling it absolutely necessary to exercise economy, without consulting the convenience of the people, required, as a bonus for mail delivery, that office room should be furnished gratuitously, or at nominal rent. For the purpose of retaining the post office in the building, and having to compete with other parts of the city, in September, 1888, appellees made a lease to the United States government for four years, at one dollar per year. Property owners and business men in the immediate neighborhood, thinking their business would be benefited and increased by being within the shadow or influence of the government charitable institution, contributed to the rent. Appellant, being a property owner in the immediate neighborhood, entered into the following contract with appellees:
“Leadville, Colorado, September 15, 1888.
"Frank De Mainville and W. H. Brisbane having offered to the government of the United States their storeroom in the De Mainville Block, in Leadville, Colorado, known as 'Number 604 Harrison Ave.,' for the purpose of a post office, for the term of four years, at the nominal rent of one dol. lar per year, now, if the said De Mainville and Brisbane shall conclude a contract with the proper department of the government for the purpose aforesaid, and upon the terms aforesaid, and the post office shall remain in said building, for the purpose of reimbursing the said De Mainville and Brisbane for the loss of the rent of said room, in consequence of said contract and in consideration of the premises, I hereby agree to pay to them fifteen dollars ($15.00) per month, in lawful money of the United States, to be paid on or before the 12th day of each and every month during the term of four years, the first of said months
March February to commence on the first day of February, 1889.
J. Fearnley." It is alleged in the complaint that appellees made the lease to the United States gov. ernment; that it went into the possession, and still retained it as a United States post office; that appellant paid $15 per month under the contract from February, 1889, up to and including the month of January, 1891, when his payments ceased. On July 16, 1892, this suit was brought to recover the monthly paynients due, amounting, as alleged, to $270. The answer of the defendant (appellant) was rather peculiar, and, for a full understanding of the supposed defense, it will be necessary to set it out in full: “The defendant admits the execution
and delivery of the papers mentioned in the in litigation. The following summary has complaint, called therein a 'writing obliga- not, as far as we are informed, ever been tory,' but alleges the same was made with- questioned: "The fundamental distinction out any consideration whatever, except the in the common law is between those cases inducement offered to the defendant by the when the consideration is a benefit to him plaintiff De Mainville, as hereinafter more who makes the promise and those in which particularly mentioned and set forth. And it is an injury to him who secures the promthe defendant, further answering, says that ise; for it is a perfectly well-settled rule the said alleged agreement, called 'writing that if a benefit accrues to him who makes obligatory' in the complaint, is against pub- the promise, or if any loss or disadvantage lic policy, and is null and void, and of no accrues to him to whom it is made, and acbinding force upon the defendant. And the crues at the request or on the motion of the defendant, by way of further defense, says promisor, although without benefit to the that prior to the 15th day of September, A. promisor, in either case the consideration is D. 1888, the defendant, being owner of cer- sufficient to sustain assumpsit.” 1 Pars. tain real estate in the city of Leadville, had Cont. 431; 2 Bl. Comm. 414; Com. Dig. “As. complained to members of the board of sumpsit,” B 1; Pillans v. Van Mierop, 3 county commissioners of Lake county on ac- Burrows, 1670; Willatts v. Kennedy, 8 Bing. count of his being assessed and taxed ex- 5; Townsley v. Sumrall, 2 Pet. 182; Haines cessively by the county of Lake, and that v. Haines, 6 Md. 435. The consideration he was thereby being compelled to pay more moving appellant, as well as several others than his due proportion of the taxes of the in the vicinity, to sign the contract, can be said county; that the said plaintiff De Main- readily understood,--that, by the drawing of ville was at that time chairman of the business to that center, property would be board of county commissioners of the said increased in value, rents and business incounty; that the defendant had prior to the creased. Consequently the consideration said 15th day of September, 1888, refused was good for both causes: (1) The benefits to sign the alleged agreement; that he did stated above were sufficient to maintain asnot believe that location of the post office in suinpsit under the promise. (2) The renting the building owned by plaintiffs was of any of the building by appellees for a nominal benefit or advantage to the defendant, and rent, for the benefit of the locality, was an he declined to assume any moral or legal injury to them, unless compensated by adliability on account thereof; that the said jacent owners. Although counsel ably conpost office was then and for a long time tends that there was no valid consideration, theretofore located in the said building own- I do not know that I can do better than to ed by the plaintiffs; that the same was not quote from the argument of appellant's located in the plaintiffs' building on account counsel, made upon another branch of the of the execution of the said contract, and case: "It appears from the evidence that the the plaintiffs did not change or agree to
plaintiffs' property had been leased to the change their condition in any manner what- government as a post office, the first lease ever by reason of the execution thereof; expiring August 12, 1888. The agents of that, after the defendant had repeatedly re- the government came to Leadville, to look fused to sign the said contract, the plaintiff over the ground, to select a site for a new De Mainville came to the defendant, and re- location. They had five or six propositions' minded him of his grievance in regard to the before them, similar to the lease offered in said assessment and taxation, and stated evidence. The amount of rent proposed in that he was convinced that the defendant the other propositions does not appear. The was being assessed higher than he ought to location offered by plaintiffs was a little bit be, and then and there proposed that, if he, up town, and it drew people from down the defendant, would execute the agreement town.' Mr. Callaway says in regard to this alleged in the complaint, he, as chairman agreement: ‘I presented that paper, and got of the commissioners, would see to it that it signed by Mr. Fearnley myself. I wanted defendant's taxes in Leadville on the prop
Fearnley to sign it, because we were all erty owned by him were reduced in amount signing it to get the post office up there.' equal, at least, to the sum that the defend- The fact that many interested parties signant would agree to pay in said alleged agree- ed papers similar to the one in suit, and that ment; that the defendant relied on said five or six propositions were made to the proposition and promise of the plaintiff, and government, would indicate that there was upon the said promise, and no other what- some rivalry as to the location of the post ever, the defendant signed the alleged agree- office; and, as usual in such cases, private ment.” The cause was tried to the court, advantage, and not the good of the public, without a jury, resulting in a finding and was considered. The evidence makes it judgment for plaintiffs for $239.23.
clear that a combination was formed among The first contention of appellant's counsel the property owners in the vicinity to seis that there was no consideration to sustain cure the post oflice a little bit up town; and the contract. The law of consideration is as the result was that the plaintiffs had, prewell defined as upon any question arising vious to the signing of the agreement by Fearnley, offered their premises to the gove tion from the argument is that it has a sec. ernment for one dollar per year." I do not ondary or collateral taint, by reason of its think the question of consideration requires being an offspring or relation of the former. further discussion.
Of course, without that it would have had The next contention is that the contract no existence; and, unless the contract with was void, being against public policy. No the government had been consummated, the principle of law is better settled than that a contract under review would have been void contract prohibited by law or morality is and inoperative. Counsel says: “There had void. It rests and is embodied in the maxim been a former lease, expiring August 12, 1888. “Exturpa causa non oritur actio." In Story The agents of the government came to Leadon Contracts (section 675) it is said “that ville to select a site for a new location. They wherever any contract conflicts with the had five or six propositions before them, simi. morals of the times, and contravenes any es- lar to the lease offered in evidence. The lotablished interest of society, it is void, as be- cation offered by plaintiffs was a little bit up ing against public policy.” In 2 Add. Cont. town, and it drew people from down town.” 1138, among the contracts enumerated as “This would indicate that there was some void, are "all contracts prejudicial to the in- rivalry as to the location of the post office, terests of the public, such as a contract to and, as usual in such cases, private advanprevent free competition, to influence improp- | tage, and not the good of the public, was conerly the performance of public duties," etc. sidered." This is all there is to taint the See Hilton v. Eckersley, 6 El. & Bl. 64; Eger- contract with fraud or illegality. Where ton v. Earl Brownlow, 4 H. L. Cas. 235.
does counsel get his data for the argument? Lord Brougham said: "By public policy is in- It is not based upon any evidence. There is tended that principle of the law which holds nothing to show that public good or conthat no subject can lawfully do that which venience was disregarded; that there had has a tendency to be injurious to the public, been any complaint or protest. For all that or is against the public good.” Egerton v. appears, the building selected and the locaEarl Brownlow, supra. The trouble is not in tion may have been the most convenient and the principle of law, but in its application.
desirable of any in the city. How can coun: First. If, in this case, there was any con- sel assume the position of champion for a tract where the rule of law would apply, it people who make no complaint of injury, and must have been the contract of leasing be- do not know they have been injured? Coun. tween appellees and the United States gov- sel says: "The court will take judicial knowlernment, to which appellant was not a par- edge that in a city like Leadville there can ty. His was a subsidiary or collateral un- be but one post office; hence the location in dertaking, entered into by several, to reim- one place is a restriction upon its being locatburse appellees for losses to be sustained by
ed elsewhere." If the first premise is corthem, with the expectation of being reim- | rect, the second is correct; and the court will bursed indirectly. I cannot see by what take judicial notice that one post office, uncourse of reasoning counsel arrives at the less perambulatory, must be in one place; conclusion that the public had any interest in but how is the court to know judicially that the contract between the parties to this suit, the one place selected was not the most deor that it could in any way conflict with sirable? It is a well-known fact, of which public morality or contravene any statute.
courts will take judicial notice, that the govIf it in any way could be brought to be amen- ernment, in selecting sites for purchase for able to the legal principle, it would simply government buildings, and in renting private be because it assisted appellees to make a buildings for govern ment use, induces compecontract to which counsel thought the law tition, and takes the most advantageous offer, might be made to apply. I don't think a when each is supposed to be equally as decase can be found where courts have at- sirable, looking to the convenience of the peotempted to carry the law to this extreme ple. And if there can be but one post office, length. If the contract was one the effect and that only in one place, and there were of which would be to corrupt the morals of five or six different sites offered, the selec. the city of Leadville, appellant should have tion of any one of them would, if the contenknown it at the time the contract was made. tion of counsel were adopted, vitiate any conAfter appellees had made their contract with tract made, and convict the general governthe government, relying upon the secondary ment and all who deal with it, all over the contracts to reimburse them, and the post states, of fraud and entering into illegal and office was located as desired by appellant, void contracts. The government of the Unitand he to derive all the expected benefits ed States cannot be so convicted unless made from such location, to repudiate his contract a party and given its "day in court." Had would seem to be a greater breach of morals the government ignored the business portion than the one claimed on entering into it. of the city, and selected an urban or suburbSecond. The argument of counsel is largely an location, many of the cases cited might devoted to the illegality of the contract be. apply, where the contract was with a railroad tween appellees and the United States gov corporation, where there was no public comernment; and, although the illegality of the petition, and the contract was to locate in contract sued upon is not argued, the deduc- a certain place, and in many instances locate
a depot outside of the town limits, and build tical or similar in character, were to receive up a new business center.
no extra compensation, appellant had a verCounty Lodge v. Crary, 98 Ind. 238, relied bal and second contract, which is not emupon by counsel, in so far as he gives it, is bodied in the original sued upon, with De more nearly parallel to the case under con- Mainville, one of the appellees, whereby he, sideration than any other cited or that can as chairman of the board of county commis. be found. It was the case of a post office. sioners of the county, and supposed to conThe citizens of Goshen required that the lo- trol the taxes of the county, should, in his cation be changed. Main and Market streets official capacity, reduce annually appellant's were competitors. The owners of the prop- taxes a sum corresponding in amount with erty on Market street entered into a contract the $15 per month he was to pay in the postwith the owner of the building to pay a cer- office contract; setting up a different and intain sum annually for 10 years if it would dependent contract from that executed, and furnish the building to the government free, upon which suit was brought. That paraor for a nominal rent, and made notes for the graph of the answer should have been strickamounts. The court held the contracts and en out. If not, no evidence should have been notes void, on the ground that the contracts admitted under it. Tne reasons are quite were opposed to public policy; but there obvious: First. It was only alleged to have were two elements entering into that con- been witb De Mainville, while the contract tract which are not found in this, that could was with both of appellees. Second. It sets readily be considered as conclusive, whicli up his own turpitude and a conspiracy with are not noticed by counsel in his discussion, the official to misapply public funds, and nor presented to this court. The first: "The appropriate them to his own use,-a contract postmaster was required by the government clearly against public policy, morals, and to furnish a room for the office, and the rent common honesty. Courts cannot tolerate was payable out of his salary.” Second, in such proceedings, and certainly cannot enthe language of the court: "The parties force such contracts. It could not have been formed a combination for the purpose of se- enforced, as it contravened two fundamental curing the location of a public office, and, as principles and maxims of the law: First. “A a part of the plan, appellants undertook that right of action cannot arise out of a fraud;" certain individuals of their number should "Ex dolo malo non oritur actio." Second. use their influence with the government offi- "In pari delicto potior est conditio defendencers to effect the purposes of the combina
tis.” It is a well-understood general propoĉion, and that the agreement to pay for such sition that an agreement to do an unlawful services was contingent upon the success of act cannot be supported at law; that no the scheme." Also: "They would use all right of action can spring out of an illegal proper persuasion to secure the location of contract. "A court or law will not lend its the post office in their room." This was the aid to enforce the performance of a contract controlling element in the case of the con- which appears to have been entered into by tract, being the use of influence upon public both the contracting parties for the express officers to effect their purpose. It has been purpose of carrying into effect that which is almost universally held that personal influ- | prohibited by the law of the land.” Broom, ence, which was the important element in Leg. Max. 732; Collins v. Blantern, 2 Wils. that case, was not a commodity for which 341; Williams v. Bayley, L. R. 1 H. L. 200; money could be collected. In that case the Prole v. Wiggins, 3 Bing. N. C. 230. The contract for the payment for personal in- proof admitted falls short of establishing the fluence was inseparable from the balance, corrupt contract. In regard to the original and vitiated the contracts. In Oscanyan v. contract, the witness Callaway testified: “I Arms Co., 103 U. S. 261, it is said, at page presented that paper, and got it signed by 273: “But, independently of the official re- Mr. Fearnley myself. I wanted Fearnley to lation of the plaintiff to the government, the sign it, because we were all signing it to personal influence which he stipulated to ex get the post office up there.” It also appears ert upon another officer of the government that the letter in regard to the reduction of was not the subject of bargain and sale. appellant's taxes was not written, as supposPersonal influence to be exercised over an ed, by De Mainville, but by Brisbane, who officer of government in the procurement of had no connection with the administration of contracts, as justly observed by counsel, is county affairs. The corrupt contract was tesnot a vendible article in our system of laws titied to by appellant. De Mainville testified: and morals, and the courts of United States "I did not make to Mr. Fearnley any propowill not lend their aid to the vendor to col- sition to reduce his taxes $15 per month prolect the price of the article.” That import. vided he would sign this paper." His term ant and controlling factor in that case being of office expired in a year, and it hardly wanting in this destroys its applicability. seems probable that he would have made a We do not think the contract void as opposed contract extending three years after its exto public policy.
piration. It is true that the evidence shows The remaining defense is unique and pe- that his taxes were reduced the ensuing year. culiar. It is, in effect, that although others He said in evidence: “The county commisentering into contracts with appellees, iden- sioners abated the valuation, for 1888, $2,625;" making it $6,375, where it had been of inability to produce it that secondary evi$9,000 before that time, his taxes having dence of its contents can be received. This been $700. That he had previously complain- doctrine is as old as the common law. But ed of excessive valuation and taxation. It the word "instrument" has a technical meanmay be remarked that De Mainville was ing in law. It is something reduced to only one member of a board of three, and writing as a means of evidence. It is the was not chairman for that year. The other formal expression in writing of some agreetwo commissioners were not connected with ment or obligation, or of some act upon he alleged contract. Consequently his valu- which the rights of parties are dependent. tion may have been considered excessive, Contracts may be made by letter, and when and reduced by the board in common with a contract is thus made the letters evidenothers.
cing it are within the definition of the term; For reasons given, the judgment will be but ordinarily a letter is not a written inaffirmed. Affirmed.
strument, and the doctrine as stated would not apply to it. But at the trial of Queen
Caroline, in 1820, the rule which obtained (5 Colo. App. 472)
in the case of written instruments was apROSE v. OTIS.
plied to letters. 2 Brod. & B. 286. The opin
ion of the judges, in response to questions (Court of Appeals of Colorado. Jan. 14, 1895.)
submitted by the house of lords, was that BEST AND SECONDARY Evidesce — INSTRUCTIONS.
the contents of a letter must be proved by 1. A writer of a letter cannot be questioned as to statements made therein until the letter
the letter itself; that counsel could not, by itself has been put in evidence, if it can be pro
questions addressed to the witness, inquire duced.
whether particular statements were con2. The same rule applies to the original
tained in the letter, but that the letter must complaint.
3. It is not error for the court to set out in be read, to disclose whether it contained the the introductory part of its charge first a synop- statements or not; and that counsel, after sis of plaintiff's evidence and then of defend
having put the letter in evidence, might, if ant's, no comment or expression which could be construed as indicating the opinion of the court
he so desired, interrogate the witness upon being made.
its contents. This opinion encountered hosAppeal froin district court, Arapahoe coun
tile criticism, but it was followed by the ty.
English courts until the rule was finally Action by E. A. Otis against Elizabeth
abrogated by legislation. The doctrine of Rose. From a judgment for plaintiff, de
the judges has been adopted in this country; fendant appeals. Affirmed.
and it is accordingly held that a witness can
not be questioned as to what are the conA. B. Seaman, for appellant. Geo. F.
tents of a letter written by him, or as to Dunklee and 0. E. Jackson, for appellee.
whether he made particular statements in the
letter, but that the whole letter itself must THOMSON,J. This was an action brought be read, as the only competent evidence of by the appellee against the appellant to re- what it contains. Greenl. Ev. 88 88, 463; cover the value of labor and services which Stamper v. Griffin, 12 Ga. 450, 455; Jackhe alleged he had performed for her at her son v. Jackson, 47 Ga. 99, 117. When the request. Certain rulings of the court, in letter is in evidence, interrogatories directreceiving and rejecting evidence, and in giv- ed to discrepancies between the testimony ing and refusing instructions, are assigned of the witness and his written statements for error. The action was brought original- are allowable; but the questions put by ly against the appellant and her husband, counsel were not proper, and the court rightJames Rose, jointly, but was dismissed as ly so held. But at a subsequent stage of to the latter, and an amended complaint filed, the trial the court, for some reason, reversed making the appellant the only defendant. its former ruling, and gave counsel full libThe plaintiff was a witness in his own be- erty to examine the witness as to the conball, and, upon his cross-examination, de- tents of the letter. Accordingly, questions fendant's counsel asked him whether he had of that character were asked and answered made certain statements in a letter written without other restriction than the pleasure by him to the defendant on July 4, 1887. of counsel. Why error was assigned upon Objection was made, and sustained, that the the first ruling, or why it is urged in this question was improper, because the letter appeal, is not clear. If counsel omitted any itself was the best evidence of its contents. question which he desired or intended to Several like attempts to prove its contents ask, it was his own fault. There was no were unsuccessfully made. The plaintiff ad- obstruction in his way. The court gave mitted the authorship of the letter, and of- him all that he at first claimed. If there fered to let it go in evidence as an entirety, was error originally, it was cured by the but counsel declined to introduce it. The later ruling, and counsel has no cause for general rule, long established, is that the con- complaint. tents of a written instrument must be proved Having permitted counsel to cross-examby the instrument itself, if it is in existence ine the plaintiff concerning the contents of and can be produced. It is only upon proof the letter, the court then allowed the plain