Irving Browne Isaac Grant Thompson.

The American reports: containing all decisions of general ..., Volume 36 online

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tbi8 ^ootrine (First National Bank of Cedar Rapids v. Hendrie,
4^9 ao^^ 402; 8. a, 31 Am. Rep. 153), still we feel quite clear that
^ncr^ tl^e contract is coupled with the condition that no depot shall
\3^ ^Btructed at a particular place, or within a specified distance,
tJ\© ^Otitract is void as against public policy, and a breach of it
($ttt^o\^ be made the foundation of an action. We have found no
^e i^ which such a contract has been held to be valid. In South-
furd y» Central R.R. Co., 2 Dutch. 13, relied on by the appellees,
the plaintiff conveyed to the defendant certain real estate to be
occapied by the defendant for the sole use of depots and other
necessary buildings for the accommodation of said company upon the
condition that if it was used for any other purpose, or if the
defendant should use any other building within one mile of said
premises for such purposes, the defendant should forfeit the real
estate. The question of the validity of the contract was not raised,
bat it was held there had been no breach of the condition. In
a V. R. R. Co. V. Babb, 9 Watts, 458, it was held simply that '• an
agreement to pay an incorporated railway company a certain sum,
to induce the location of their route at a particular place, is valid
and binding and may be enforced by action." Jetoetty. L. A U*
Vol. XXXVI — 27

Digitized by




Williamson v. Chicago, R. I. and P. R Co.

M, R. R, Co,f 10 Ind. 539, is simply the case of a subscription to a
railroad company in land upon condition of a location of the road
within twenty rods of St. Omar. The defendant built its road
more than a mile from St. Omar, and it was held that the Talue of
the land subscribed could be recovered. It is evident that these
cases fall very far short of sustaining the validity of the contract
in question. The other cases cited by appellees are not more
directly in point.

That no relief will be granted on a contract which is illegal or
against public policy, to a party who is in pari delicto, is abundantly
and uniformly sustained by authority. In Beator v. Wathen, 60
111. 138, it 13 said: ** The defendants, in the court below, filed a
cross-bill, asking the court to cancel this contract as a cloud upon
their title, and this was done. In the view we have taken of the
case the contract should be regarded as so far against public
policy that neither party is entitled to the aid of the court The
defendants have entered into a contract, the effect, or at least the
tendency, of which was to induce the complainants to commit a
breach of duty. The refusal to enforce the contract practically puts
an end to it; yet the court should not have granted affirmative
relief on the cross bill. To this extent the decree is modified.
Both bills arc dismissed, and the costs of this court equally

In Tyler v. Smithy 18 B. Monr. 793, the Court of Appeals held
that if an individual pay money under an illegal contract, or a con*
tract against public policy, he will not be aided by law to recover
it; that the maxim pari delicto potior est conditio de/endentiA
applies, and that the law in such cases leaves the parties as it finds
them, and extends no help to either. In Spalding v. Banhy 12
Ohio, 544, which was an action to recover money paid to the bank
under an illegal contract, the court say: '^ It is an act malum pro^
hibitum, and if the bank was seeking to recover it, it would not
receive the aid of this court. It is, however, a part of the agreed
stiitement that the money being in the hands of the bank, the
plaintiff, when from time to time he presented his checks, con-
sented to this reduction of five percent. This being so, and the
consideration being illegal, the plaintiff appears to us to heparti-
cep8 criminis. He is in pari delicto with the bank, and while the
law will not enforce an executory contract, but leave the parties as
it finds them in each case, so neither will it aid the party who has

Digitized by


JUNE TERM, 1880. 211

WiUiamBon v. Chicago, a I. aud P. R. Co.

performed such contract by enabling him to recover back the
amount he has paid, but the maxim, volenti nonfit injuria, applies.
in all its force. There is, perhaps, no principle on which there is
less conflict of authority from the earliest to the most modem
reports. Roll v. Ragucty 4 Ohio, 418; Raguet v. Roll^ 7 id., part 1,
78; CbiL Con. 210; Stone v. Hooker, 9 Cow. 154; Moore y. Adams,
8 Ohio, 372."

In Perkins v. Savage, 15 Wend. 412, it is said: **It is supposed,
however, by the counsel for the plaintiff, that if tlie contract is
conceded to be illegal as against the policy of the act of incorpora-
tion, still the only consequence is to avoid it, and that the money
placed in the hands of the defendant in pursuance thereof may be
recovered back. He has referred to a number of cases for the pur-
pose of supporting this proposition. * * * * This proposition
is laid down by Mr. Selwyn, vol. 1, 74, and is fully supported by
authority, viz.: * When money is paid by one of two parties to an
illegal contract to the other, in a case when both parties may be
considered as particeps criminis, an action cannot be maintained
after the contract is executed to recover the money back again, for
in pari delicto potior est conditio defendentis, 8 T. R 777 ; Doug.
4CT, 097 ; Cowp. 792.^ The same general proposition may be found
in 2 Corayn on Contracts, 108, and also in Saunders on Pleading
and Evidence, C77. This author says: 'If the illegal contract be
executed and both parties are in pari delicto, no action lies to
recover money paid under it.' The same principle has been recog-
nized and applied in the recent cases in the English courts, as itiilso
has been by the chief justice in this court. Stokes v. Twitchen, 8
Taunt. 492; Thistlewood v. Cracroft, 1 Maule & Selw. 500, 751 ;
Burt X, Place, 6 Cow. 432." See, also, Spence v. Harvey, 22 CaL
337; Holladay v. Patterson, 5 Oreg. 177; Bolt v. Rogers, 3 Pai.

XL It is claimed, however, by appellees that if it should be con-
ceded that the contract in question is against public policy, still
the plaintiffs have a right to recover exactly what they were allowed
in this case. It is claimed that the defendants procured the con-
tract by fraud, and that therefore the plaintiffs may recover. The
fraud upon the part of the defendant, it is alleged, consists in the
defendant's promising to erect its only passenger depot in East
Des Moines, intending at the time to yiolate this promise, and to
dreot a depot in West Des Moines. We are unable to see how thia

Digitized by


212 IOWA,

WUliamaoo ▼. Chicago, R. I. and P. R. Go.

fact, if it exist, can render the contract legal npon the part of the
plaintiffs. The plaintiffs, upon their own showing, entered into a
contract, which, if it had been adhered to, woald have deprived
a considerable portion of the citizens of Des Moines, and many of
the general pnblic, of the advantages to which they were entitled
nnder the law, from the constraction of the railroad in qnestion.
It cannot pnrge this contract of its illegality as to the plaintiffs,
that they were induced to believe by the false and fraadnlent rep-
resentations of the defendant that in contracting for this injury and
disadvantage to their neighbors they would secure great advantages
to themselves. This proposition seems to us too clear to warrant
further discussion.

III. It seems also to be the position of appellees that this con-
tract remains executory, and that the action is not brought upon
the contract, but in disaffirmance of it The authority mainly re-
lied upon by appellees upon this branch of the case is While v.
Franklin Bank, 22 Pick. 181. In that case the plaintiff deposited
with the bank it2,000, upon the agreement that it should remain
there six months, which was in violation of the statute. The plaint-
iff brought an action for the recovery of the money before six
months expired. It was held he might recover. The syllabus
of the case is as follows : '^ Where upon the deposit of money
in a bank, the depositor received a book containing the cashier's
certificate thereof in which it was stated that the money was
to remain in deposit for a certain time, it was held that such agree-
ment was illegal, and void under Revised Statutes, Code, 36, § 57,
as being a contract by the bank for the payment of money at a fu-
ture day certain, and that no action could be maintained by the
depositor against the bank upon such express contract, but that he
might recover the money in an action commenced before the expi-
ration of the time for which it was to remain on deposit, the par-
ties not being in pari dehclo, and the action being in disafSrmance
of the illegal contract ; and that such action might be maintained
without a previous demand." The opinion fully supports this

It is evident that in that case the contract remained executory,
for the money had not remained in the hands of the defendant the
full time stipulated in the agreement when the action was brought
The action was not brought upon the contract, for it was commenced
before the plaintiff was entitled to the money under the contract

Digitized by


JUNE TERM, 1880. 213

Williamflon v. Chicago, R. I. and P. R. Co.

The theory of the claim iu that case was that the contract was ille-
gal^ and hence that the plaintiff was not under obligation to per-
form by leaving the money with the bank for the time stipulated.
Suppose however that the plaintiff had permitted the money to re-
main in the bank for the time prescribed in the contract, and had
Bought to avail himself of the benefits of the contract, and after the
lapse of six months bad sued, alleging the contract and the breach
of it, and had sought to recover damages, what then would have
been his situation? It was expressly ruled in this case that no ac-
tion could be maintained on the contract. In Story's Equity Juris-
prudence, § 296fl, the following language is employed: " When a
party to an illegal or immoral contract comes, himself, to be relieved
from that contract or its obligations, he must distinctly and exclu-
sively state such grounds of relief as the court can legally attend
to, and he must not accompany his claim to relief, which may be
legitimate, with other claims and complaints which are contamina-
ted with the original immoral purpose ; for if he sets up, as a
gronnd of relief, the nonfulfillment of the illegal contract on the
other side, and thereby that he is released from obligation to per-
form it, that shows that he still relies upon the immoral contract
and its terms for relief, and therefore the court will refuse it.**

In this case the plaintiffs have fully performed the contract on
their part. On their side the contract has been executed. The
action is not brought in disafiSrmance of their contract Upon the
contrary, they allege a full performance of the contract upon their
part, and a breach of the contract upon the part of the defendant.
It is upon this breach that they predicate their right to recover.
Their action is upon the contract. This is apparent from the alle-
gations and the prayer of the petition, as well as from the evidence
submitted to support it. If the contract had been in all respects
legal, and an action had been brought to recover damages for a
breach of it, it would have been brought in exactly the form that this
action is instituted. In 8t. Joseph £ Denver City R. It. Co. v.
Byati, 11 Kans. 602 ; s. c, 15 Am. Bep. 357, the action was brought
in exactly the same form as this. We feel fully satisfied that for a
breach of £he contract, as alleged and proven, no damages are re«

[Omitting minor matters.]

JudpMBHt T&V9t9$d*


by Google



Williamsou v. CUicago, R. i. and P. R. Co.



KoTB BT THB Rkporter.— Tn a new country like ours, in which FaUwajrs are erety
day being constructed, it is a very common thing for an Individual to offer a company
projecting a new railway, a grant of land or a donation of money to induce a particular
location of the route or of a station, and for the railway to accept the benefit subject to the
condition. The public policy of such contracts has been considerably discussed in the
courts. These contracts sometimes contain a condition prohibiting the company from
erecting any other station within certain limits. The decisions are therefore to be ranked
under two heads, first, those containing such restriction, and second, those not contain-
ing It.

In regard to the first we are not aware that there is any conflict of opinion. In JfarWi v
Fairhury <f yitrth-tpcstern Ry. Co., W 111. 414; s. c, 16 Am. Rep. 664, A. D. 1872, It was held
that specific performance of a contract to locate a railway depot on plaintiff^s land ami : (
no other point in the town, would not bo enforced.

In St. Louis, JaekMfiville <£• Chicago R, R, Co. v. Mathers, 71111. 682; s. c, 22 Am. Hep.
122, A D. 1874, the same doctrine was apiiUed in a suit to compel the reconveyance of land
granted on condition that no stations Should bo built within three mfles of a certain place.
In St. Joiteph tt Denver City R. R. Co. v, Ryan, 11 Kans. 602 ; s. c. 15 Am. Rep. 857, A. D.
1873, the agreement was to construct and moiulaJn a station on the cn'anted lands, and not
have any other within throo loUci:* It was lielJ that an action for breachof this contract
would not lie. State v. Uart/ord <e X II. R, Co., 29 Conn. 688, cited in this cot^e, is not In
point, for that was a case where the road hod been constructed to the terminus directed by
the charter, namely, the navigable waters of Now Haven barbor,and subsequently by agree-
ment with another road its terminus had been removed from those waters and located a
mile and a half distant at the station of the other road in New Haven. Maixdanxus iasaed
to compel the running of trains to the original terminus.

Secttmi, But some courts have gone much beyond the doctrine of these cases, and have
held that an a^i^reement between an individual and a railroad company for the ocation of a
depot at a particular place, in consideration of money or property, and without any re-
strictive provision, is against public policy, and void Pacific R. C^o, ▼. Sedey, 46 Mo. 212;
Battur v. WaOien, 60 111. las ; Ftt.7er v. />tmc 18 Pick. 472.

The leading case soeins Vj bo Fuller v. Dame, 18 Pick. 472. This was an action on a note
given In consideration of an agreement to locate a station on certain lands of the payee
The station was built accordingly, but the court held the note not enforceable because the
agreement was against public policy. The court, by Shaw, C. J., said: **The work Is a
pubUc work, and the public accommodation is the ultimate object. In doing this a confi-
dence was reposed in them, acting as agents for the public— a confidence which it seems
could be safely so reposed, wlien it is ootiHidered that the interests of the corporation as a
company of passenger and freight carriera for profit was identical with the interests of
those who were to be carried —that Is with the public Interest. This confidence, however,
could only bv3 safely so ref>used under the belief that all the directors and members of the
company sliould exercise their best and their unbiaiied judgment upon the question of such
fitness without being Influenced by distinct and extraneous Interests, having no connection
with the accommodation of the public or the Interests of the company. Any attempt
therefore to create and bring into efllcient o[)eratlon such undue influence has all the in-
juriou.; effects of a fraud uiM>n the pul>lic, by causing a question which ought to be decided
with as »le and single regard to the public interests, to be affected and controlled by con-
siderations having no regard to such intert^sts. • ♦ • It is ob\ious that if onelai>re
landholder may make a valid conditional promise to pay a large sum of money to a stoc-l;-
holder, or influential citizen, on condition that a work of great public improvement may hf
so fixed as to enhance the value of his estate, all other great land-owners may make like
promises, on similar conditions, and great public works, which should be conducted with a
view lo the public interest, and to the just rifrhts of those who make advances for the pub
lie benefit . would bo in danger of being overlooked and sacrificed In a mercenary conflict
of separat^^ local and private Interests."

Ill />* f<(or V. IVatheu, (V) III. lfV>, the agreement was to build a station on some vacant lot«
where there was no town, with a view of building up a town there. The court said ;
•* Rendere<l Into plain English, the contract in this case was a bribe on the part of Wathen
and Gibson to the president and other offloers of t he railway company, and to the con-

Digitized by


JUNE TERM, 1880. 215

Williamson v. Chicago, B. I. and P. R. Co.

^■^BctMB who were building the road, of an undivided half of one hundred and sixty acrea
of land, in consideration of which the road was to be constructed on a certain line and a
<^«pot built at a certain point. Now, If tliis was the best line for crossinK the Illinois Cen-
^*^ considered with reference to the Interests of thestoclcholders and of the public, then It
^&a the duty of the officers of the company to establish it there ; and if they intended so
^ do because it was the proper line, but professed to be hesitating between this and an-
**ther line In order to secure for themselves the contract under consideration, as is some-
what indicated by the evidence, then they were practicing a species of fraud upon the
<iefendants and using a false pretext in order to acquire defendants* property without con-
^dtdration. If on the other hand, this line was not the best, but was adopted because of
^bia contract, the case is still stronger against complainants. If such was the fact, they
^'^ asking the court to enforce the payment of a bribe, the promise of which induced them
^ sacrin^'e their official duty to their private gain. If as a third contingency, the choice
^y between this line and another equally good, but uot better, and they were Influenced
°y this contract to adopt this line, then although neither the company nor the public has
^**^ injured, yet the defendants have made their official power an Instrument of private
^Oiolnment in a manner which no court of equity can sanction. In this particular case no
^■^ng may have been done, and yet public policy plainly forbids the sanction of such con-
'^'ts because of the great temptation they would offer to official faithlessness and cor-
J^PUon." *• The defendants in the court below flle<l a cross-bill, asking the court tocancel
^*^ contract as a cloud upon the title, and this was done. In the view we have taken of
Me case, the contract should be regarded as so far against public policy that neither party
' ^^titJed to the aid of the court. The defendants have entered into a contract, the effect,
«s least the tendency of which, was to induce the complainants to commit a breach of
"(f. " And it was held that it made no difference that a town was subsequently built up

^ ^ -^^acZ/ic R. Co. V. Sedey^ 45 Mo. 212, Seeley agreed with the Pacific Railroad Company,

aeed it a certain lot of ground for purposes of speculation in consideration that the com-

^T wovUd locate a freight and passenger depot on his land. The Massachusetts case was

^^^*^^^'G<1 . and the court held that although in one sense the company was a private cor-

fatloix^ yet its chartered privileges were granted, in part, to subserve the public Inter*

J. • ^**^^t such an agreement might be superinduced by a prosi)ect of mere gain, and thus

. ^**t»«M-ail welfare and good of the public might be sacriflced to subserve mere private in-

"*^* » 1 liat for this reason such an agreement was against public policy and void.

uei-i^ 1«« athird class of cases, of which we have not spoken, namely, where a grant or

^ *^**^*^ is made to induce the location of the route or station at a particular city, town or

T^^**^^ ''w-ith no restriction, of course, against running to other like places. This Is said

y soiri^ t;o be distinguishable from the subservience of mere private and individual inter-

_ ^Vocordiugly contracts involving such cireumstances have sometimes been upheld.

*^« In C. B. R, Co. V. nnab, 9 Watts, 458, It was held that " an agreement to pay an In-

^""P^^-s^-t-^d railway company a certain sum to induce the location of their route at a par-

».^^|^r>lace is valid and binding, and may be enforced by action. '* The court there said:

n^ ^^^ allowed to do the best for the company's welfare by the use of every means not

®*l>» "^ *5»«ly interdicted is one of the conditions on which the stockholders subscribed their

^^^^■» ^Jid it is one by which the public will not be found to suffer, for managers will

^^ ■'^sss have sufficient sagacity to see that the location which best serves the public is

- ^**lch will give the company the greatest run of customers. It is most politic there-

_. ^^ l*;t8uch a company manage its affairs according to the dictates of its interest.*'

^^ ^^^^*^*on was on a subscription paper signed by many inhabitants of Harrisburg to induce

•j^^^^Pany to cross the river at a certain part of the town.

£ ^^^^^*^^« jIUwih/, f^t ^' Co. v. MeCormich, 10 Ind. 499, the action was on a subscription
Wa^«^^^^ conditioned that the railway should be located through Lafayette, and cross the

-^^^^ river north of Brown street in that town. This was held valid.
^^j^ *^»ocft V. Latvrencelmrghf etc., /?. Co., 10 Ind. 539, there was a subscription of stock.
\Z^ ^*^«»ed that the road should be located within twenty rods of St. Omer. The sub.
^^^^J*^*i having been paid, and the condition not complied with. It was held that the money
^^^ ^recovered.

" ^■nt National' Bank of Cedar Rapids v. Hendrie^ 49 Iowa, 408; s. c, 81 Am. Rep.

Digitized by




VanderpcBl v. O'Hanlon.

168, it was lield that noteegtren In consideratioii that a projected railroad should be bnflk
to Ooundl Bluffs, rather than another place, were enforceable. Hie court in the princi-
pal case admits that HoUaday ▼. DavfM^ 5 Or 40, is opposed to their view, but tbej are
mistaken in the oonceasion, for the court in that case ezpresslj declined to ghre any opin-
ion on the question, and based their decision on another point, namelj, that the oQOflideva-
tion moTed to an agmt, and not to the principal.

Vakdebpcel V. O'HAKLOlsr.

(58 Iowa, 846.)
CansHtutUmal law — wting — residence.



A Btudent attending college, and having no other residence at the college town,
and no intention of remaining there permanently, is not entitled to vote

ACTION of damages for ref asing to accept a vote. The opinion
states the case. The plaintiff had judgment below.

S. H, Fairally Chas. Saher and Oeo. J. Boaly for appellants.
Milton Reniley and 8. M, Finchy for appellee.

SEEVERSy J. The material facts are, that in January, 1875, the
plaintiff was nineteen years of age, and his home or residence was
with his father in Mitchell county, in this State. At that time he
was sent by his father to the State University at Iowa City for the
purpose of completing his education, and was still attending said
school in March, 1878, when he offered to vote. His father fur-
nished the means required for the plaintiff's expenses and for the
payment of such fees as were required at the University.

His father's home in Mitchell county was the plaintiff's '' head-
quarters " or residence during vacations, except when he was absent
from there on hunting or other excursions. At the time he offered
to vote the plaintiff was unmarried and twenty-two years of age.
In response to a question as to his intention to make Iowa City his
home after he ceased to attend the University, the plaintiff, being
then on the witness stand, answered as follows : ^^ I didn't know
what I would do after I had graduated. I was not aware that I
would ever leave Iowa City. I did not know what I would do af-

Digitized by


JUNE TERM, 1880. 217

Vanderpoel v. O'Hftnlon.

terward. I was at that time (when he offered to vote) without any
intention.'' Whether the plaintiff was a legal voter depends on the
question whether he was a resident of Johnson county at the time
he offlared to vote. As to this we have to say;

Online LibraryIrving Browne Isaac Grant ThompsonThe American reports: containing all decisions of general ..., Volume 36 → online text (page 26 of 123)