Feltner v. Feltner

[707] Opinion of the Court by Judge Hobson Affirming. Moses B. Feltner brought this suit against F. B. Feltner and the Winchester Bank, alleging in his petition that, on-December 6, 1904, he delivered to Felix B. Feltner the sum of $1,000 for safe-keeping as his agent for Ms use and benefit, that Feltner deposited the money in the Winchester Bank to his own credit, and that the bank still held the money. He prayed judgment against Feltner and the bank. The defendants filed answer controverting the allegations of the petition. Proof was taken, and, on final hearing, the court entered judgment in favor of the defendants. The plaintiff appeals. The facts of the ease as shown by the record are tlle.se: Mrs.. Marcum had brought a suit against James Hargis,■ etc., to recover damages for the death of her husband', and she had at Winchester as a witness on her behalf, among others, Moses Feltner. Shortly before the trial came on, an arrangement, was made with Moses Feltner by which it was agreed that he should leave Winchester and go to Ohio, and remain there until after the trial was over. In consideration of his doing this, he was paid $1,000, and the defendants in the Marcum suit agreed that they would stand by Moses Feltner and help him to get out of an indictment for murder which was pending against him in the Breathitt circuit court. They were unwilling to pay him the $1,000 and t'ake the chances of his appearing at the trial of the Marcum case as a witness, and he wanted1 some kind of earnest that they would do what they had promised if he did not appear. [708] Felix Feltner was at Winchester as a friend of Hargis, etc., and so it Was arranged that the $1,000 should be put in Felix Feltner’S' hands, he being a cousin of Moses Feltoer, and that Felix was to pay the money to Moses if he did not appear on the trial of the Marcum case, and was to see. that Hargis, and others lived' up to their agreement as to the murder case in Breathitt county. Felix Feltner took the money and placed it in the bank. Moses Feltner left and went up to Ohio, and did not return until after the Marcum case was over; and, when he returned, Felix Feltner refused to pay him the $1,000. This suit followed. The facts about this matter are more fully stated in French v. Commonwealth, 97 S. W. 427, 30 Ky. Law Rep. 98, which was a contempt proceeding against the parties for running off a witness. That there was a criminal conspiracy to run the witness away from the trial, and that the $1,000 was paid in execution of this conspiracy, the evidence leaves no douht. The payment of the money was a part of the conspiracy, and it was held by Felix Feltner simply because, the persons paying it were afraid to' trust Moses with, the money, and wished to be sure that they got what they bargained for before he got the money absolutely. We are referred'to a large number of authorities holding that, after an illegal agreement has been fully executed, the party in possession of the profits will not be permitted to interpose the objection that the business which produced the fund was in violation of law, and that, if money has been paid to an agent, the illegality of the transaction of which the money was. the fruit does not affect the right of the principal to recover the money from his agent who holds it. 9 Cyc. 556, 15 Am. & Eng. Encyc. of Law, 1007; Mc [709] Blair v. Gibbes, 58 U. S. 232, 15 L. Ed. 132; Brooks v. Martin, 2 Wall. 70, 17 L. Ed. 732; Martin v. Richardson, 94 Ky. 183, 21 S. W. 1039, 19 L. R. A. 692, 42 Am St. Rep. 353; Irwin v. Irwin, 107 Ky. 24, 52 S. W. 927; Maize v. Bradley (Ky.) 64 S. W. 655. If this was a snit by Felix Feltner against the bank, these authorities, would be applicable, but none of them touch this case. Here there was a criminal conspiracy to defeat the course of public justice by running a witness away from the court on the eve of the trial; and we have here an action by one of the conspirators against another in which he asks the aid of the court to compel his fellow conspirators to surrender to him the fruits of the unlawful conspiracy. The court will not lend its aid in any such matter. Smith v. Richmond, 114 Ky. 303, 70 S. W. 846, 102 Am. St. Rep. 283. The money was not placed in Felix Feltner’s hands simply as agent of Moses- Feltner, and to hold for him. - It was placed in his hands to hold until Moses Feltner carried out his agreement not to appear as a witness on the trial of the Míarcum case, and then to. be paid over to him. It was not to be paid to him if he did not carry out his illegal agreement. The unlawful .agreement to stifle public justice entered into-the deposit, and was the moving consideration for it. Judgment affirmed.