Leveroos v. Reis , 52 Minn. 259 ( 1893 )

Gilfillan, C. J.

Action as for money had and received by the defendant Reis upon some forty different orders or warrants drawn by the comptroller of the city of St. Raul on the treasurer of said city for various sums, in favor of John Leveroos, plaintiff’s decedent, and the defendant Messenbourg, wrho is made defendant for the reason that he refuses to join as plaintiff, and which orders came into the hands of Reis, and he indorsed and received the money on them.

At the close of the evidence, the court below directed a verdict for defendants.

The evidence established beyond question these facts, — stating them briefly and only so far as necessary to present the points upon which the case must be decided: The defendant was the city treasurer, and on him seems to have rested (in practice, at any rate) the duty of serving the personal notices provided in eases of assessments for local improvements. There seems to have been no provision made for paying the expense of preparing and serving these notices, unless compensation to the treasurer therefor is to be deemed included in the salary and percentages allowed him generally. It appears that during the period covered by these orders, and for some years prior thereto, the common council was accustomed to allow, and direct to be paid, bills presented to it for serving the notices. Eeis employed Leveroos and Messenbourg in preparing and serving the notices, (and that was about all they did for him,) under this agreement. That whether the council should allow the bills for serving the notices or not, Eeis should pay each of them a monthly salary of $60 or $80, and if the council should allow the bills, and direct them paid, Eeis should receive the money, and use it in paying the cost of preparing and serving such notices, including the keeping of certain books necessary or convenient in preparing and addressing them. This, of course, assumed that the bills were to be made out and presented as for what was due Leveroos and Messenbourg for their services in preparing and serving the notices, (although in fact they were paid for such services by Eeis.) The bills were so made out, certified as correct by Eeis, presented to, and allowed and directed paid by, the council. Orders or warrants issued for them, which were indorsed by Eeis with the names of the payees, “per Geo. Eeis,” and the money thereon received by him; and it was used by him, and more besides, in paying the cost of preparing and serving such notices, and of keeping the books, and both Leveroos and Messenbourg at all times acquiesced in such receipt and use of the money.

The court below held this to be a valid agreement, and on that holding directed the verdict. But, whether the agreement be legal or illegal, the plaintiff cannot recover. If legal, the money went into the hands of, and was disbursed by, Eeis, with the consent of plaintiff’s decedent; for which consent there was a valuable consideration, to wit, the salary paid him. The agreement was not illegal merely for the reason suggested by appellant, — that by the agreement Eeis stipulated for a consideration for official action, or reward for appointing to a clerkship, within the meaning of the Penal Code. Leveroos and Messenbourg were only agents or servants of Eeis for the purpose of preparing and serving the notices. The vice, if any, in the agreement, consisted in the element of deception to be practiced upon the common council, by presenting bills as for money due to Leveroos and Messenbourg for services for which they had been ■or were to be paid by Eeis, and not disclosing to the council that the money was to inure to Eeis, and not to the nominal parties in the transactions. We do not say — it is unnecessary — that this rendered the agreement illegal. But, if it did, plaintiff’s decedent, equally with Eeis, was a party to the illegality, and out of that illegality the claim plaintiff is urging in this action grew; and, as the agreement was fully executed, neither party (assuming that it was illegal) can appeal to a court to help him out of the position in which it placed him.

■ None of the rulings admitting or excluding evidence, assigned as error, could have affected the facts, as we have stated them, and so need not be considered.

' Order affirmed.

Application for reargument denied January 20, 1893.

¡(Opinion published 53 N. W. Rep. 1155.)