Harvey v. Tama County

Day, J. I. Tbe defendant urges that the court erred in refusing to give certain instructions asked. The abstract states that “ after the evidence and the arguments of counsel were concluded, the defendant asked the court to give to the jury each of seven instructions written in pencil on six leaves of paper fastened together at the top * * * . Each and all of which said instructions so asked by the defendant the court then and there refused to give, and wrote on the margin of the first of the leaves so attached together these words, ‘Instructions one to seven all refused. Defendant excepts. John McKean, Judged To which refusal and ruling the defendant then and there duly excepted.” „ asked°U\vrft1. The appellee insists that error cannot be assigned upon the refusal to give these instructions, because they were not asked in writing. Section 2781 of the Code provid.es: “All instructions asked, and the charge of the court, shall be in writing.” It is claimed that instructions written in pencil do not comply with this provision. The statute does not provide that the writing shall [232] be made with ink. In Geary v. Physic, 5 B. & C., 239, it was held that the indorsement of a promissory note might be made in pencil. See authorities cited in Parsons on Notes and Bills, page 21, note y. We think this position of the appellee is untenable. 2____ exceptions, 2. ' It is claimed that the exceptions taken to the refusal to give the instructions asked are not sufficiently specific to authoi’ize a review of these rulings. All the authorities cited .by appellee refer to exceptions to instructions given. A different rale applies to an exception to a refusal to give instructions asked. In such case by asking the instructions the court’s attention is directed to each proposition contained in them, and a general exception to the ruling on such as are refused is sufficient. Davenport Gas Light & Coke Co. v. City of Davenport, 13 Iowa, 229. 3____ refusal. 8. It is insisted that the refusal to give the instructions asked cannot be reviewed because the court did not write on the mai’gin of each instruction not given the word “refused,” as provided in section 2Y86 of the Code. The ruling on the margin of the first of the six leaves attached together is made applicable to all the instructions asked, and is a substantial compliance with the statute. II. The defendant assigns as error the refusal of the court to give the fourth instruction asked, which is as follows: ■i paymentaeoonfald21 satisfaction. “You will first inquire whether Samuel Forker has been . paid for his services. If you find from the testimony that •Dará®! .Forker, the treasurer, paid his deputy, Samuel Forker, for his services before the assign-me¿£ 0f the account to plaintiff, this constitutes a good payment, and you will find for the defendant.” This instruction was warranted by the pleadings and the evidence, and we think it should have been given. If the deputy treasurer has been once paid for his services, it seems clear that neither he nor his assignee should recover therefor again. And this is true, if the payment was made by the treasurer, even if he was not, primarily, liable for the payment foi [233] the services of his deputy. The better sustained doctrine of the law now is that an accord and satisfaction, moving from a stranger, or person having no pecuniary interest in the subject matter, if accepted in satisfaction of the debt, constitutes a good defense in an action against the original debtor. Leavitt v. Morrow, 6 Ohio, N. S., 71, contains a very full and exhaustive examination of this question, and reviews the case of Grymes v. Blofield, Cro. Eliz., 541, announcing a contrary doctrine. In the course of this opinion it is said: “ It requires powers of discrimination looking far beyond the justice of the case to see the reason 'of the rule that accord and satisfaction, although moving from a stranger, yet accepted by the creditor*, and set up in the plea of the defendant as a discharge of the debt, does not constitute a legal defense to the action.” And further: “When the creditor has actually received and accepted the contribution in satisfaction of the debt, to allow him to maintain an action on the same debt afterward would seem to shock the ordinary sense of justice of every man.” III. The defendant asked the court to instruct the jury as follows: c.-: re-1<?HSC ; inipeaehment of. “ If Samuel Forker has not been paid, you will then inquire whether he executed the release set up by the defendant. If you find from the evidence that he did execute ** the release, and that at the time he so executed it he knew the purpose for which it was executed to be such as set forth in the reply of the plaintiff, viz: to corruptly and wrongfully influence the voters of Tama county, then he is yparticeyps orimvmis to an immoral and unlawful act, and the plaintiff cannot recover. The services having been fully performed and the release executed, prior to the assignment to plaintiff, and prior to the commencement of this action, neither law nor good morals will permit the parties to invalidate a release which imports a consideration by showing the moral turpitude of the parties signing it.” The court refused to give this instruction, and instructed the jury as follows: “ If you find and believe from a preponderance of the evidence [234] that the plaintiff’s assignor, at the time he executed the written release in controversy, knew that it was done corruptly, for the purpose of influencing the voters of the defendant at the ensuing election in and to the election of his brother as treasurer of the defendant, and for no other or good consideration, then the said release is wholly inoperative and of no effect. But if you believe and find that, at the date of the release, the defendant was indebted to the said Samuel Forker, and that he voluntarily released and discharged the same without a corrupt purpose as aforesaid, the release will be operative and good in law.” The action of the court in giving this instruction, and in refusing to give the one asked, is assigned as error. In our opinion the instruction asked should have been given, and the one given is- erroneous. The release imports a consideration, and operates as a discharge of the defendant, unless it can be shown that the release was given without consideration. The plaintiff, in order to show such want of consideration, alleges, and seeks to prove, in effect, that the release was executed for the purpose of bribing voters, and securing an election to a public office. It is well settled that the law will leave all who share in the guilt of an illegal or immoral transaction where it finds them, and will not lend its aid to enforce the contract while executory, nor interfere to rescind the contract and recover the consideration when executed. In the Inhabitants of Wooster v. Eaton, 11 Mass., 378, the following language is employed: “ It appears' to be the settled law in England, and we are satisfied that it is also the law here, that where two parties agree in violating the laws iff the land, the court will not entertain the claim of either party against the other for the fruits of such an unlawful bargain-. If one holds the obligation or promise of the other, to pay him money, or do any other valuable act on account of such illegal transaction, the party defendant may expose the nature of the transaction to the court, and the law will say, ‘ Our forms and rules are established to protect the innocent and vindicate the injured, [235] not to aid offenders in the execution of their unjust projects, and if the party who has foolishly paid his money repents his folly and brings his action to recover it back, the same law will say tb him, you have paid the price of your wickedness, and you must not have the aid of the law to rid you of an inconvenience which is a suitable punishment for your offense.’ ” To the same effect is White v. Hunter, 23 N. H., 128. See, also, Williamson v. Chicago, Rock Island & Pacific Railroad Company, ante, 126. This doctrine, which is applicable to cases where the parties are in pcwi delicto, must, a fortiori, apply to a ease like the present, in which it does not appear that the defendant was a partaker in the unlawful purpose.. The plaintiff cites many cases wherein a party sued upon an agreement has been permitted to show its illegal or immoral character in defense to the action. That a defendant should be allowed to make such defense • follows from the rule that the law leaves parties to an illegal contract where it finds them, and extends no aid to either. But in this case the plaintiff seeks to show the illegality in the release, and to rid himself of the effects of it, not as a defense to any action, but to open the way for affirmative relief against the county. That he cannot do so, we think the authorities to which we have already referred abundantly show. For the errors discussed the judgment is Reversed.