Dillon v. Allen

Reck, J. I. At the time the contract sued upon was entered into and performed by plaintiff, the following statute of this state was in force: “If any person run any threshing machine in this state, without having the two lengths of tumbling rods next the machine, together with the knuckles or joints and jacks of the tumbling rods safely boxed and secured while the machine is running, he shall be deemed guilty of a misdemeanor, and be punished by a fine of not less than ten or more than fifty dollars for every day or part of a day he shall violate this section; and an action may be maintained for services rendered by or with any such threshing machine, for the benefit of the school fund.” Code, Sec. 4064. This provision was amended by Chap. 38, Acts Fifteenth General Assembly, as follows: “ Section 1. That section 4064, of chapter 11, Title 24 of the Code, be amended by striking oxxt all that part of said section after the word ‘Section,’ in the seventh line, and inserting in lieu thereof the following: And any person who shall knowingly permit either his own grain, or any that may be in his possession or under his coixtrol, to be threshed by a machine the rods, knuckles or joints of which are not boxed in accordance with the requirements of this section, shall be liable to a like fine as that prescribed for the person running such a machine, both of which fines may be recovered in an action brought before any court of competent jurisdiction. y contract: wtum: penal’ tyII. We are required to determine whethex-, under this statute, the answer of defendant, assailed by the demurrer, presented a sxxfficient defense to the action. We it a settled doctrine of the common law, that contx’acts intended to promote, or requiring the performance of acts foi’bidden by statute are void, and this is so though the statute does not so declare, bxxt only inflicts a penalty for its violation xxpon the parties forbidden to do the acts. See Chitty’s Contracts, 694r-7, and axxthorities cited in [301] notes. Guenther v. Dewein, 11 Iowa, 133; Pike v. King, 16 Iowa, 19. 2 -; §eiieto.m pan III. "We do not understand that counsel for plaintiffs question the coi-rectness of this rule as it is generally expressed, but claim that this case is within certain admitted exceptions to its operation. They argue, in the first place, that the parties were i/npari delicto, and, therefore, if defendant be protected from his contract, he will thus be permitted to take advantage of his own wrong. While the principle upon which this position is based is the substance of a maxim of the law, yet it is the subject of exceptions and modifications by the application of other doctrines and rules, which may truly be said of almost all rules of law. The effects of statutes which make unlawful specified acts, upon persons violating them or aiding in their violation, are not considered in their enforcement by the courts. If one offender suffers thereby and the other gains an appai-ent benefit, no argument can be drawn therefrom for suspending the operation of the law. This is an incident in the administration of justice against which neither legislatures nor the courts can provide. The party suffering, being in delicto, cannot complain of the operation of the law, for he merits the punishment prescribed for its -violation. It cannot be said that the law confers upon the other a benefit because of his violation of its provisions. What he gains comes to him as a punishment of the other party, not as a reward to himself. In like cases, as where contracts are made upon Sunday, both parties violating prohibitions of the statute, the law is enforced, even though one of the guilty parties maybe exempted from a liability that would otherwise exist against him. It often happens that a defendant may avoid his contract in an action thereon by alleging his joint wrong and criminality with the other party in violating a statute by entering into the contract. ■ Wheeler v. Bussell, 17 Mass., 258: 2d Chit. Cont. (Russell’s Ed., 11th Am.), 975. IY. Another position of plaintiff’s counsel is stated by them in these words: “The contract was in its inception legal. The act, advantage of which is sought to be taken by [302] appellant, was merely an incident of its execution.” It is argued that the court.cannot avoid a legal contract on account of a violation of law in its execution. Without admitting the soundness of the argument based upon the proposition, the question thus presented may be briefly disposed of by the single remark, that the proposition of fact itself is not supported but directly negatived by the record. The answer of defendant explicitly alleges that the contract for the threshing contemplated the performance of the work by a machine not boxed as required by statute. The question discussed is not, therefore, in the case. 3i_._. ■ Y. Plaintiff relies upon Watrous & Snouffer v. Blair, 32 Iowa, 58, and Pangborn v. Westlake, 36 Iowa, 546, in which we held valid contracts for the sale of town lots entered into before the plats were recorded as required by statute, which imposed a penalty for failure to comply therewith. These decisions are based upon the grounds that the party enforcing the contract, and the owner of the land required to record the plat, were not in pari delicto, and no legislative intention could be discovered in the statute violated, to render the contract void. The case before us is different. Here the parties are in pari delicto, and as the act required by the contract in question is the very corpus delicto contemplated by the statute, it was the legislative intention to hold it for nought. The distinction between the cases may be made plain by a little further consideration. In the case before us the statute forbids the use of threshing machines wanting in certain contrivances for the protection of those employed about them. The contract in this case was for the use of such a machine, and was performed by such use. The very act performed under the contract was forbidden by the statute, and the parties thereto were in pari delicto. In the other cases referred to above, the statute provides that any person who shall sell a town lot before the plat is recorded) shall be subject to a prescribed penalty. The statute does not forbid selling the lots before the plat is recorded, but fixes a penalty against the owner of the land platted for failing to record the plat. The sale is not unlawful; the corpus delicto.' [303] prescribed in the statute is the omission to record the plat. The purchaser was guilty of no violation pf law; the contract ' was not forbidden. It is, therefore, valid. YI. Hill v. Smith, Morris 70, is cited and relied upon by plaintiff. It was an acti'on upon a promissory note given for. a claim upon, or possessory right to, public lands purchased by. the defendant of plaintiff. An act of congress provided that, any one taking possession of, or settling upon the public lands, should forfeit all his right, title, or claim to the lands occupied; to the United States. There is no provision in the act making the occupation or transfer of lands so occupied a public offense. It provides no further than that persons making, such settlements upon public lands shall be dispossessed, and their rights and claims shall be taken by the government. The court held that this statute did not avoid the note. This language, which is quoted and relied upon by plaintiff, is used in the opinion after the discussion of several authorities. “ The rule to be drawn from these cases, therefore, appears to be, that when an act is absolutely prohibited by statute, or is-contrary to public policy, all notes, etc., given in furtherance of that act, are null and void; but where the statute fixes a mere penalty, contracts in relation to matters which subject the maker to that penalty, are not on that account invalidated. When not intrinsically wrong the individual is permitted to perform the act upon the payment of the penalty. This is a species of license money, exacted for the privilege of doing a certain thing, but the act is not otherwise unlawful, unless expressly declared so.” It is very plain that the term “penalty ,” Used by the court was not intended to designate a'punishment, or forfeiture affixed by statute to a criminal act prescribed therein. It is rather used in the sense of the word forfeiture when applied to contracts and estates. In this sense its use does not cause the latter part of the quotation to conflict with the uniform current of authorities as announced in the first part of this quotation itself. The facts of the case, and the connection, show that it was used in the sense we have indicated. The statute under consideration did-not prescribe an offense, and simply subjected the persons making settle-. [304] merits upon publie lands to a forfeiture of their claim or interest therein to the government. The case gives no support to the doctrines contended for by plaintiffs’ counsel. The distinction between the case before us and the two just above referred to, determines the want of applicability of other cases from the'courts of other states cited by counsel for plaintiffs. They demand nó further notice. Ingersoll v. Randall, 14 Minn., 400, was decided upon a statute similar to our own. The facts of that case are almost identical with those before us, and a conclusion was reached therein that recovery could not be had upon a contract-similar to the one involved in this case. The decision supports our conclusion herein. In our opinion the demurrer to defendant’s answer should have been overruled. Reversed.