Theuber v. Marek

LEVY, J. (after stating the facts as above). [1] Appellant made James Phiip a party defendant in this cause, and at the same time ashed for an order requiring Phiip to file a statement under oath, showing his dealings in the alleged cattle transactions. The court made a vacation order, requiring Phiip to file a sworn statement as ashed for by appellant. In obedience to the order of the judge said Phiip filed a sworn statement, setting forth an agreement with appellant to purchase cattle, and specifying the cattle bought and the amount paid for them. The statement further recited that— “Ed Mareh never received any of Ed Theu-ber’s money from the bank or from me, except in payment of cattle which he sold and delivered to me, and Ed Theuber got every dollar the cattle brought when sold. “Every dollar I received for the sale of cattle I turned over to Ed Theuber. He kept books. He kept the money and I never could get a settlement out of him. I do not owe Ed Theuber one cent, and Ed Marek does not owe him a dollar in this cattle business while I was handling it.. I bought a lot of cattle from Ed Marek and paid him for them. He bought quite a number from me and paid me for them, and Ed Theuber got the money.” The plaintiff offered the above statement in evidence, and the appellant excepted to the ruling of the court in' admitting it. The defendant Phiip did not appear in the trial,' and a judgment by default was entered against him in favor of appellant on his cross-action. It is believed there was error in admitting the ex parte statement in evidence, requiring a reversal of the judgment as to both E. P. Marek and Ed Marek. For the said ex parte statement of Phiip went to show that Ed Marek did not fraudulently take money belonging to Theuber and had not committed any criminal offense. And the evidence in the record is a disputed question as to whether or not Ed Marek fraudulently or wrongfully obtained the money of the appellant, and whether or not Ed Marek and Jim Phiip acted together, as alleged, to defraud the appellant. The jury could easily have been influenced to decide the disputed issue by looking to* and accepting the ex parte statement before them. If it be true that Ed Marek fraudulently or wrongfully obtained the money of the appellant, then there is a good consideration for the notes, mortgages, and property in evidence. For money fraudulently or wrongfully obtained from another is a good consideration for a promissory note taken in payment of it. Thorn v. Pinkham, 84 Me. 101, 24 Atl. 718, 20 Am. St. Rep. 335. And if it be true, as alleged in the cross-action, that F. F. Marek voluntarily gave the notes and mortgages to repay the money fraudulently or wrongfully gotten by his son, then F. F. Marek is liable on his contract. So if Ed Marek was guilty in fact of having fraudulently obtained the money of Theuber, he would be liable on his note and bill of sale in suit, even though he executed them under threat o'f a criminal prosecution. And if F. F. Marek did not execute the notes and mortgages under duress, but to secure the payment of the money wrongfully or fraudulently gotten by his son from the appellant, F. F. Marek would be liable on his undertakings." The evidence complained of bore directly upon the pivotal issues in the case, and was, we think, illegal evidence in the form offered. The judgment is reversed, and the cause remanded.