Bush v. Southern Brewing Co. ( 1891 )

Cooper, J.,

delivered the opinion of the court.

In the year 1889, the appellee, resident in the state of Louisiana, established an agency in the city of Vicksburg for the sale of its manufacture (beer) in “original packages,”' brought into this state from Louisiana. This agency was in charge of one Henry C. David. The United States internal revenue license was taken out, but whether the fee was paid 'by the appellee or by David is not distinctly shown. For the purposes of this decision, we assume it to have been paid by the appellee. The privilege tax ($50) imposed by the laws of this state upon dealers in malt liquors, was not paid, and the agent, David, was indicted for transacting the business without having fir'st paid such tax. The appellant, Bush, was employed by David, in the name .of the Southern Brewing Company, as an attorney at law to defend him on the charge preferred. David was tried and convicted, and was preparing to bring his case by appeal to this court, when he died, and the prosecution was thereby abated. The appellant thereupon presented his account for professional services in defending David to the appellee, who denied liability therefor, whereupon this suit was instituted to enforce payment.

On the trial, the plaintiff introduced evidence tending to prove the facts above set forth, and also to show that the agent, David being in doubt as to the liability of his principals for the tax imposed, it being, as it was contended, engaged in interstate commerce, consulted with the district attorney in reference thereto, who thereupon submitted the matter to the attorney-general of the state, who advised that until the question should be determined by the courts, payment of the tax should be insisted on. Thereupon, as it is stated in the testimony, to determine the question, the district attorney caused an indictment to be found against David.

It does not appear that the appellee was notified by David of the course of events, or that he had any express authority to engage counsel to defend him at its expense.

The above facts having been proved by the plaintiff, and also that the sum for which suit is brought was a reasonable fee, the plaintiff rested his case, whereupon the defendant asked the court to instruct the jury to find a verdict in its favor, which was done, and the plaintiff appeals.

We do not dissent from the principles of law propounded by counsel for appellants, but we fail to perceive their applicability to the facts of this case. Whether the proposition be stated in the form that an agent may bind the principal by contracts within the scope of his agency, or that an agent may secure indemnity from the principal for any loss or injury suffered by him for doing an act, apparently lawful, under the direction of the principal, we assent to its correctness. But, though the ..principle as stated be correct, it profits the plaintiff nothing unless the facts of his case entitle him to its application.

Assuming, first, that the business of the principal was an unlawful one, because the tax imposed by our law had not been paid, the agent was neither entitled to indemnity against the consequences of indictment and conviction nor for indemnity against the expense incurred for fees of counsel, for the reason that one may not appoint an agent to violate the law. One engaging as agent for another to transact a business prohibited by law, and who is proceeded against for doing the prohibited act, can have no recourse against his principal for indemnity. JSx turpi causa non oritur actio.

On the other hand, if the business transacted was a lawful one, the principal was under no obligation, express or implied, to defend the agent against an unjust and baseless prosecution for engaging in it. The agent knew as well as the principal the character of the business in which he was employed. He appreciated the danger of indictment for transacting it without first having paid the tax imposed by law, and consulted the representative of the state upon the probable result, and was, it must be assumed, informed that an indictment would be presented unless the tax was paid. It is not suggested by the evidence that the principal was informed that the agent would proceed without payment of the tax in order that a test case might be made for the decision of the question. The agent and the district attorney were the only parties to the arrangement for an indictment, if one was agreed on, and we are unable to perceive upon what ground indemnity could be awarded to him for the expenses incident thereto.

As we have said, the question involved is whether the contract between the agent and the appellant was within the scope of the agency, and if the agent might not have secured indemnity against the principal if he had paid the fee due to the appellant, he could not bind the principal by contracting in his name with the attorney for services to be rendered in his defense.

The judgment is affirmed.