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Ex TURPI CAUSA NON ORITUR ACTIO. Where a person sends money to another with the object of inducing the latter to use his influence to get the former nominated for an office, without reference to the fitness of the applicant for the position he seeks, or the public good, and the party receiving the money does not use his influence for such applicant, but against him, the trans action on the part of him who sends the money is of such improper character that the law will afford him no remedy to recover it back.
44 113 174 480
WRIT OF ERROR to the Circuit Court of Cook county; the Hon. E. S. WILLIAMS, Judge, presiding.
This was a suit commenced before a justice of the peace in Cook county, by Joseph Liness against Anthony C. Hesing. The cause was removed into the Circuit Court by appeal, where a trial resulted in a judgment in favor of Hesing. Liness thereupon sued out this writ of error.
Messrs. HAINES, STORY & King, for the plaintiff in error.
Mr. John LYLE KING, for the defendant in error.
Mr. JUSTICE LAWRENCE delivered the opinion of the Court:
Liness being desirous of procuring the office of clerk of the police court in the city of Chicago, sent to Hesing the following letter:
“A. C. HESING, Esq.,
CHICAGO, April 7, 1865. “ Present
(Private.) “Dear Sir: Inclosed please find twenty dollars, for which please use your influence to get me nominated for police court clerk; if I get the nomination, call on me for twenty more.
“I am, sir, very truly yours,
“JOSEPH LINESS" 8 — 44TH ILL.
Hesing used his influence not for Liness but against him, whereupon the latter brings this action to recover the twenty dollars. The object of sending this inoney was to secure the nomination and election of the plaintiff to a public office of trust and responsibility without reference to his fitness for the position or the public good. It was an attempt to influence, by monied considerations, the action of the defendant, in a matter where every person should be governed solely by a regard for the public welfare. The principle is well settled that courts will lend no sanction to transactions of this character, by recognizing them as the basis of legal obligations. Ex turpi causa non oritur actio. We must leave these parties as we find them.
44 114 178 516 178 525
EPENETUS B. KELLOGG.
1. AGENCY — evidence of, for the jury. Where a party is shown to have been the agent of another in a particular business, and continues to so act within the scope of his former authority, it will be presumed that his authority still continues, and will bind his principal unless the persons with whom he acts have notice that his agency has ceased.
2. SAME. An agent for a commercial house who travels and solicits orders for his principal, in the absence of proof will not be presumed to have authority to rescind his contracts and take back goods furnished by the house for which he is agent, when they prove unsatisfactory to the customer.
3. SALE- of goods - delivery and acceptance. If the party of whom goods have been ordered shall ship within a reasonable time, the amount and quality ordered, and in the manner directed, the property thereupon vests in the purchaser and is thenceforth at his risk. If after such shipment a portion of the goods are abstracted and others of an inferior quality substituted so as to render the whole of an inferior quality, in that case the loss must be borne by the purchaser. As soon as such goods are delivered to the carrier the title vests in the buyer subject only to stoppage in transitu.
4. SAME. Even if a different kind from that ordered, should be shipped, and is received by the purchaser and he appropriates it, the title thereby vests in him, and he must pay what it is reasonably worth. He would not in that case
Statement of the case.
be bound to receive it, but, on learning its quality, he should in a reasonable time give notice that he declined to receive it, and thereby avoid liability. In such a case the title would vest in him until he accepted it. In such a case it is for the jury to say from all the circumstances whether he did accept it.
5. AGENT - general and special. It is not error for the court to instruct the jury that a party could only recover by showing that the person receiving goods for his principal was his general agent and acted within the scope of his authority, or was his special agent to receive the goods in dispute, unless it was shown that his general agency was continued after his principal ceased to do business. Such an instruction excludes the fact that the person may have the general agency of his principal before he quit business and the seller not noti. fied that he had ceased to be his agent.
6. SALE — on order — notice of shipment. A party on shipping goods on an order is not bound to give notice thereof to vest the title in the purchaser, or a failure to do so does not relieve the purchaser from the acts of his former agent, or from giving notice that the agency had ceased.
7. EVIDENCE — admissions of a party. As a general rule, where admissions of a party are received in evidence generally they are proper for all purposes, and should be considered by the jury and receive such weight as they may deem proper to give them.
APPEAL from the Superior Court of Chicago; the Hon. JOSEPH E. GARY, Judge, presiding.
This was an action of assumpsit brought by Ebenetus B. Kellogg, in the Superior Court of Chicago, on the 25th of February, 1864, against Michael Diversy, to recover the price of a pipe of Cologne gin. The declaration contained the common counts. The defendant pleaded the general issue, with notice of recoupment and set-off. On the 4th of September, 1866, a , trial was had before the court and a jury.
It appeared on the trial, that, on the 29th of September, 1862, one James M. Combs, a traveling agent to solicit orders for Kellogg, a wholesale liquor dealer in New York, while in Chicago, received an order from Rose, the son-in-law and general agent of defendant, having charge of his store, and doing business for him. The order was for three-fourths of a pipe of Cologne gin, and the directions were to ship it by the Western Transportation company's line. The order was filled by plaintiff shipping the gin to defendant. The pipe contained one
Statement of the case.
hundred and thirty-eight gallons, and was shipped by the transportation company as directed.
The gin reached Chicago by way of the Michigan Southern railroad, before the 18th of November, 1862. After lying some days in the depot, it was sent to the warehouse of Keogh, the agent of lost freight. He mailed a notice to defendant, and the next day Rose went with the notice, representing himself as acting for defendant, paid the charges, receipted for it in defendant's name, and took it away. He at first objected to the charges and threatened to replevy the gin. On the 18th of November, in raising the cask to an upper story of Myers & Turney's store, it fell, and was bursted, and the liquor was lost. It was taken from the freight house to Myers & Turney's, to whom defendant had previously sold his stock.
It appears, that Rose was there after the sale, still engaged in settling the business of defendant, up to the time the gin was lost. Shufeldt says, that at the time it was destroyed, Rose was still acting to all appearances as he had before for defendant, and that he purchased of defendant, or Rose, a pipe of gin about that time. Turney swears that Rose obtained of him permission to store the gin in their house. Shufeldt swears that at the time he purchased the pipe of gin, Rose said that he and defendant had another cask which had fallen through the hatchway. Rose seems to have called on other parties to examine the gin to see if it was according to the sample.
There was testimony that the gin was of inferior quality, and not worth more than one dollar per gallon, instead of two and a quarter, the contract price. Cowles swears, that the gin shipped was of the quality ordered, and worth the sum agreed to be paid. There was testimony, that after the gin was taken into possession by Rose, Combs tried to sell the gin to other persons, saying that it was not satisfactory to defendant.
Defendant asked a number of instructions, the fifth and tenth of which the court refused to give. They are these :
“5. The plaintiff can only hold Mr. Diversy for the acts of Mr. Rose, by showing that, at the time when Rose received the
Statement of the case.
gin, he was either Diversy’s general agent, acting within the scope of his authority, or else that he had specific anthority to receive that particular pipe of gin on Diversy's behalf; and unless the jury find from the evidence, that Rose's general agency was continued after Diversy had sold out his business and store to Myers & Turney, or that Rose was specially authorized by Diversy to go to Keogh’s and get that particular pipe of gin, Mr. Diversy is not holden for his acts or declarations in the premises, and the law on this point is for the defendant.”
“10. If the transaction was merely a conditional order to send a certain quality of gin, if they could find it, and Diversy received no advice of shipment, he was not compelled to notify plaintiff that Rose's agency had ceased, in order to relieve himself from responsibility for Rose's unauthorized acts, after Diversy had sold out to Myers & Turney."
The defendant's ninth instruction, as asked, is this:
“9. If a party produces a document containing certain statements which are uncontradicted by other evidence in the case, such uncontradicted statements are, as against the party producing the document, evidence of the facts so stated. If, therefore, Mr. Diversy's affidavit, produced by plaintiff, states that the contract was rescinded, or that Rose's agency had ceased, or any other fact material in the case, such statement of fact is to be presumed to be correct, unless the contrary is proved in the case. The plaintiff can only use Mr. Diversy's affidavit to show admissions against the defendant, and not for the purpose of attacking the defendant's veracity.”
The court, lowever, modified it before it was given by striking out of the latter part of it, this clause :
The plaintiff can only use Mr. Diversy's affidavit to show admissions against the defendant, and not for the purpose of attacking the defendant's veracity.”
The jury found a verdict in favor of plaintiff for $138. Defendant thereupon entered motions for a new trial and in