Leadbetter v. Hawley

Mr. Justice Burnett delivered the opinion of the court. 1. Stripped of its redundant verbiage, the complaint sets out a cause of action in replevin in the detinet to recover the bonds in question. Conceding, without deciding, that the contract drescribed in the complaint and the testimony in support thereof was contrary to public policy, the plaintiff’s right to recover depends upon two conditions: First, the action must not be for the enforcement of the illegal agreement, but rather in disaffirmance of it; and, second, the contract must at the commencement of the action be yet in the executory stage. Whether we accept as a postulate the position of the plaintiff that he was induced by the fraud of the defendant to surrender possession of the bonds, or adopt the assumption of the defendant that the transaction detailed in the complaint is illegal to the extent that the court will not interfere with the existing situation created by the parties, this action proceeds in disaffirmance of the alleged contract. The plaintiff is in court, not in favor of his agreement, but in spite of it; not to enforce it, but to be relieved from it. If he were seeking to compel the defendant to vote his stock in a particular way, or to enjoin him from voting, or to recover damages for the result of his vote, it might be said that the object of the action was to enforce the contract. None of these things, however, appear. On the contrary, the plaintiff wishes to retrace his steps and to be restored to what is his own, irrespective of whatever contract was attempted by the parties, or either of them, whether legally or illegally. A contract becomes executed when all is done that its terms require to be performed. Until that situation is attained, the contract is executory. [425] 2. The contract in question contemplated something to be done by the plaintiff, to wit: the delivery of the bonds. It also had in view something to be done by the defendant, viz., voting his stock as directed by plaintiff. As to the part to be performed by the defendant, the contract is clearly executory, for he makes no pretension that he ever voted or was directed how to vote in pursuance of the agreement. The defendant does not claim to have carried out his part of the agreement in the least. The principle underlying such affairs is that, until the illegal contract is executed, the law will aid in the recovery of the money paid or the property delivered in part performance of‘.the illicit enterprise; but when it is fully accomplished the courts will be closed to both parties, and will leave them without remedy. This doctrine is illustrated in Willis v. Hoover, 9 Or. 418; Bernard v. Taylor, 23 Or. 416 (31 Pac. 968: 18 L. R. A. 859: 37 Am. St. Rep. 693). Other decisions of this court involving matters of this kind and refusing relief are where the plaintiffs sought to enforce the illegal contract, as in Pacific Livestock Company v. Gentry, 38 Or. 275 (61 Pac. 422: 65 Pac. 597), or where the unlawful agreement was fully executed, as in Ah Doon v. Smith, 25 Or. 89 (34 Pac. 1093). There is testimony in the record upon which the plaintiff was entitled to go to the jury upon the question of fraud alleged in his complaint. On the defendant’s theory of the contract being against public policy, the plaintiff had not yet passed the place of repentance, the agreement being yet executory; and, as he is proceeding in disaffirmance of the contract, he had a right to be heard before the jury and take its verdict. The judgment is reversed. Reversed.