Greenland v. Mitchell

• GUNNISON, District Judge. Defendants’ counsel, on the submission of the case, urged that the contract was to ac [274] complish an illegal purpose, and, as such, should not be enforced, the enforcements of such contracts being against public policy; that plaintiffs knew, when they entered into the contract, that the building to be erected was to be used as a gaming house, and hence that they cannot recover therefor, such contract being illegal. In the opinion of the i court, this position is untenable; all evidence as to the purpose for which the building was to be used, or for which it was :used after erection, and as to plaintiffs’ knowledge thereof, having been excluded on the trial after argument of counsel. The court was then, and, after- a careful perulsal of the authorities cited by counsel for defendants on tfye submis sion of the cause, still is, of the opinion that the -case at bar does not fall within the rule urged by defendant. ' The contract sued upon was for the erection of a building, and even though defendant proposed to use it as a gaming house when completed, and plaintiffs knew it, the fact that the' latter entered into and performed their part of the contract is not, to the mind of the court, such a furtherance of an illegal purpose as to enable defendant to avoid his Obligations arising thereunder. The defendant cannot repudiate th^e contract on this ground, and thus secure to himself advantages flowing from his violation of the law. 15 Am. & Eng. Enc. of Law, 987; Michael v. Bacon, 49 Mo. 474, 8 Am. Rep. 138; St. Louis Fair Ass’n v. Carmody, 151 Mo. 566, 52 S. W. 365, 74 Am. St. Rep. 571. Defendants also contend that there is a fatal variance between plaintiffs’ pleadings and proofs. Neither can the court agree with counsel in their position on this phase of the case. The fact that plaintiffs’ proofs show a less amount than is set up in the complaint is not such a variance as to be fatal to their whole cause of action. 1 Let judgment enter for plaintiffs against the defendant Mitchell in the sum of $739, with interest, together with costs of the action. 1