Olson v. Saxton

Opinion by Me. Chief Justice McBeide. 1, 2. The action of the court in ordering the testimony to be taken by the court stenographer in the absence of the judge, was certainly irregular and had an objection been made thereto and exception saved, or even had such an objection been urged and an exception saved after the return of the judge to the bench, we would be inclined to consider it, but neither of these things were done. The alleged errors were not taken advantage of by objection and exceptions at the trial, and will not be considered here. As remarked by Mr. Chief Justice Waldo, in Kearney v. Snodgrass, 12 Or. 311 (7 Pac. 309): “It is not error simply but error legally excepted to, that constitutes ground for reversal.” The court reserved its decision upon this case for more than two weeks after the hearing, and it is more than probable that the judge followed the not unusual practice of circuit judges and had the testimony read to bim by the stenographer before rendering his final decision. 3. The testimony, however, is all here and we think it fully sustains the findings. The plaintiff, who was at that time a married man, became acquainted with defendant in 1905 in Alaska, and as he states met her “off and on” for several years and up to 1908, when he called upon her in Portland and was asked by her to [674] ship her piano from Alaska, which he did and received a letter of thanks, and thereafter had some correspondence with her. Later there was a lull in the letter writing but he finally received a letter from her from Culver, Oregon. From Alaska he sent her from time to time $210. In August, 1911, he met defendant in Portland by agreement, and he says they talked matters over “in a business way and in a married way.” He told her how much money he had (over $1,300) and she said “that will help a whole lot.” The conversation between them, as he says, resulted finally in him giving her a sum of money ($500) and doing labor in fixing up her homestead, and later building her a house on some lots she had purchased in the town of Multnomah, the consideration for these things being that she would marry him when he had obtained a divorce from his then wife. In the meantime they discounted the future marriage by meretricious intercourse in anticipation of the future happy event. tThen plaintiff went to British Columbia and engaged in some sort of business there and in January (year not named) defendant followed him there and was angry that he had not procured his divorce. Later she wrote him she had consulted an attorney in Portland, who had told her that plaintiff could get a divorce in Oregon, and on February 12, 1912, he returned to Portland and was advised to stay in the state one year before applying for a divorce, which he did. It was during this interval that he cleared the lots at Multnomah and erected the building heretofore referred to. The relations between them continued as before and when the building was completed defendant moved into it and plaintiff resided in the city but saw and visited her frequently. About June, 1912, defendant went to the beach, plaintiff sending her a little money while there. In July she [675] returned for a short time, and when she returned she told him it was “all off” with their friendship. Plaintiff told her he had seen an attorney and that he could get a divorce very easily, but she went away and about September 1, 1912, notified him to vacate the house, which he did. When she returned they had a meeting and plaintiff told defendant he would marry her as soon as he got a divorce, but she said it was no use, that they had just as well settle up, and about September 17, 1912, plaintiff presented a bill for $1,700 for work and labor performed and money loaned defendant, and, as plaintiff claims, she argued there should be a deduction of $5 for each act of sexual intercourse and the claim was finally lumped off at $1,500, for which defendant gave the promissory notes mentioned in the complaint. Later plaintiff secured a divorce. We have given a fair summary of the testimony up to this point and it indicates clearly that the money was originally advanced upon the strength of a promise by plaintiff that he would obtain a divorce from his wife and marry defendant, and a reciprocal promise on the part of the defendant that she would marry plaintiff when he had so been divorced. The agreement, if made, was grossly corrupt, illegal, and immoral. The money received by defendant from plaintiff, and the services rendered by him to her, were not advanced or rendered with any expectation or agreement to repay them, except that involved in the immoral contract of a married man to get a divorce from his wife, and thereafter marry defendant, and the further consideration of illicit intercourse. Plaintiff could not get rid of the taint of illegality that hung around the transaction by presenting a bill for services rendered and money advanced,-and taking notes for such sums. The courts were not created to be used [676] by lawbreakers to recover money paid ont upon such immoral and illegal considerations, and it is evident that had plaintiff kept the notes and sued upon them the considerations above mentioned would have been sufficient to defeat a recovery: 1 Page on Contracts, sec. 512. 4, 5. Plaintiff, however, does not rely upon the original promise to marry, which he says was made before he obtained the divorce, but upon an alleged new promise which he claims defendant made him after he had obtained a divorce and was free to contract a marriage. Upon this branch of the case the burden of proof was upon him to establish the new promise by a preponderance of evidence. He swears defendant made such a promise, while she testifies just as positively that she did not. It is quite as probable that she is telling the truth as he, and there is no corroboration of either. He has failed therefore on the vital point in his case, and viewed either from the standpoint of the law or from that of the facts, his appeal must fail. Judgment affirmed. Affirmed. Mr. Justice Burnett, Mr. Justice McCamant and Mr. Justice Moore concur.