Tandy v. Elmore-Cooper Live Stock Commission Co. , 113 Mo. App. 409 ( 1905 )

SMITH, P. J.

— The facts out of which the action arose may be summarized in about this way: The plaintiff was in possession of a pasture in Woodward county, Oklahoma, containing about 240 sections of land which he had inclosed with a barbed wire fence. The title to all this land except about two-ninths was in the United States — it being part of the public domain. In 1899 one Hudson, who was the owner of about two thousand head of cattle subject to a mortgage to the defendant, entered into a contract with plaintiff under which Hudson turned over to plaintiff the cattle to be by the latter kept in his pasture under the contract until about the 14th day of November, 1900. It seems that about this date defendant, the mortgagee, desired to take possession of the cattle .under it mortgage but to this plaintiff objected unless his impoundage or pasturage charges were first paid. It appears that he claimed as due him on this account some $2,100. Included in this claim was a charge for feed furnished for the cattle while they were in the State of Texas. This account was disputed by defendant if not by Hudson. In view of these differences the defendant, plaintiff and Hudson agreed that a Mr. Mog should arbitrate the differences just referred to. Accordingly, as a common law arbitrator Mos heard and determined all the matters so in difference between them. The arbitrator cut down the plaintiff’s claim to $900. The item therein for pasturage was eliminated, leaving only those for feed furnished by one Coombs and the wages which plaintiff had paid the cowboys for their services in keeping the cattle in the pasture. Hudson was utterly insolvent and after the amount he should pay plaintiff had been determined it Avas suggested by the arbitrator that Hudson give plaintiff his note for it; but to this plaintiff objected saying, “I cannot get a thing out of Nick Hudson: he has not got 15 cents.” The arbitrator said, “let us go and see Avhat Mr. Nations — the defendant’s secretary and treasurer who Avas then on the ground where the cattle were — ; Avill do. Let us talk it over with him.” Accordingly, they Avent to see Mr. Nations, who said: “I will tell you what we Avill do. If you will accept that note and give Mr. Hudson six months’ time to pay it we will guarantee the payment.” Plaintiff agreed to this and Mr. Nations, as secretary and treasurer of defendant company, wrote its name across the back of the note, after which it was delivered to the plaintiff.

The plaintiff himself testified that the defendant denied that it owed the pasture bill and insisted that it was a debt of Hudson’s. He further testified that he refused to allow the cattle to be moved from the pasture until his claim was settled and until he got the note.

The defendant by its answer pleaded amongst other defenses that, “the only pasturage and feed' furnished the said cattle of the said Hudson by the plaintiff for which the plaintiff claimed the said Hudson was so indebted to him as aforesaid, and to secure payment for which the aforesaid note executed by Hudson on the back... whereof the defendant’s name was written, was given, was growing on the public lands of the United States Government in the Territory of Oklahoma; that plaintiff had no claim or color of title to, and no right to the exclusive possession of the said public lands which the defendant’s cattle had depastured; that the plaintiff had wrongfully and unlawfully fenced, inclosed, and exclusively occupied and controlled the said public lands against the statute of the United States of America in such cases made- and provided, to-wit: An Act to Prevent Unlawful Occupancy of Public Lands,’ Chapter 149, U. S. Statutes at Large, Yol. XXIII, enacted February 25,1885.” And that by reason of the premises the said note executed by the said Hudson, on the back of which defendant’s name appears, was given for an illegal and void consideration.

The answer further pleaded that the defendant as such mortgagee, together with the mortgagor, the said Hudson, went to take, and made demand for, possession of said cattle to ship them to market for sale; that the plaintiff, although he well knew that he had not himself as an agister, or otherwise, any valid claim to, or lien upon, the said cattle for pasturing them on the public domain as aforesaid, did, nevertheless, refuse to release and deliver over to the defendant and Hudson, aforesaid, their own proper cattle unless the defendant would cause its name to- he written across the back of a note executed by Hudson in tbe manner aforesaid; that tbe writing of tbe defendant’s name across tbe back of tbe said note was obtained by duress, threats and inciting, to fear; that tbe true consideration for defendant’s contract guaranteeing tbe collectability of tbe aforesaid note of Hudson was not that tbe plaintiff should grant to said Hudson an extension o-f time wherein to pay a just indebtedness then due as tbe petition alleges, but it was, as appears by tbe premises that tbe plaintiff should release tbe cattle of defendant and tbe said Hudson, which tbe plaintiff was then «and there wrongfully distraining, restraining, and refusing to deliver o-ver to their rightful owner; that there was no consideration for tbe defendant’s contract of guaranty and that tbe said contract is void and of no binding effect whatever.

A great number of instructions were requested, -some of which were refused and will be noticed further on. The trial resulted in a judgment for plaintiff and defendant appealed.

Tbe defendant assails tbe judgment on tbe distinctive ground that tbe court erred in refusing an instruction requested by it which in substance declared that if tbe jury found that tbe note in suit was given in consideration that the plaintiff bad cared for certain cattle belonging to Hudson and that a part of such care was tbe pasturing of such cattle on public lands of tbe United States within an inclosure constructed thereon by plaintiff and tbe keeping of such cattle from straying away by means of such inclosure so constructed around such pasture, then its verdict should be for defendant, even though it believed that plaintiff may have rendered some lawful services in caring for said cattle. Tbe defendant’s refused instructions numbered three and five were similar in their enunciation.

It is not disputed that tbe consideration of the note was tbe feeding and pasturing of tbe Hudson cattle. ' Just what proportion of the plaintiff’s claim was for feeding and what for pasturing does not appear. It is in effect conceded — or if not it might as well be — that so much of the consideration of the note as was for the pasturage of the Hudson cattle on the public domain was an illegal and non-supporting consideration. The Act of Congress pleaded by the answer declares it to be unlawful and a misdemeanor to erect or maintain any fence inclosing more than 160 acres of the public domain, and provides for the summary destruction of any such fence. [Camfield v. United States, 59 Fed. Rep. 562; s. c., 167 U. S. 518.] We are required to give to the statutes of the United States the same recognition, force and effect accorded to those of this State. [Peltz v. Long, 40 Mo. 532; Carson v. Hunter, 46 Mo. 467; Claflin v. Torlina, 56 Mo. 369.] And it has been settled by a long line of adjudged cases in this State beginning with Boynton v. Curle (1835-37), 4 Mo. 599, and coming down to as late at least as St. Louis Fair Assn. v. Carmody (1899), 151 Mo. 566, that all contracts requiring or tending to encourage, or arising out of, or connected with the performance of an act forbidden by the terms of a statute, which is designed to px’event altogether, not to xnerely penalize for revenue the doing of an act, are void axxd unenforcible. [Ehrhardt v. Robertson, 78 Mo. App. 404, and authorities there cited.] In the present case a part of the consideration for which, the note was giveix was for the keep of the Hudson cattle in the inclosux’e of the plaintiff. It is to be inferred that the contract between the plaintiff and Hudson required that the cattle of the latter should be tuxmed into the plaintiff’s inclosure to be therein fed upon the ‘Tree grass,” or that groAvn by nature upon the public domain, and the keeping of other cattle, for which no pasturage was paid, out of this part of the inclosed public domain. The use of the inclosune and that of the public domain for keeping and grazing the cattle were component parts of the consideration for which the note was given, and each of which “was illegal because the primary one was the maintenance of the inclosure, and consequently the occupancy of the public lands” was unlawful. “It is true that we know of no statute that makes it illegal for one person to contract with another for grazing cattle upon the public domain, but it is illegal to maintain an inclosure and thus keep a pasture on the public domain . . although the caring for and keeping the cattle upon the public domain may be lawful, these things coupled with the agreement that they be done in this unlawful inclosure makes the entire contract illegal and void, for the legal cannot be separated from the illegal.” [Garst v. Love, 6 Okla, 46.]

But it is contended that as the amount of the feed bill, which was the larger part of the consideration of the note, was legal and valid, and as the remaining part of the consideration was for keep of the cattle only, Avithout including any charge for the grass eaten by the cattle while so confined in the pasture, that therefore no part of the consideration of the note was illegal. The pasturing of the cattle by plaintiff Avas not gratuitous. He in the first instance claimed a large amount for the use of the grass — for the grazing — but finally, upon the suggestion of his attorney and the arbitrator, he eliminated that and restricted his claim to the amount he had laid out and expended for the employment of “cowboys” to care for the cattle and keep them confined in the pasture. They were used in maintaining the unlaAvful inclosure on the public domain. The case is not different than if the plaintiff had himself personally attended to the maintenance of the fence and the keeping the cattle in the pasture inclosed by it, and had charged for such services. In Avhich case the use made by him of the unlawful inclosure of the public domain Avhile caring for the cattle Avould, under the contract, whether express or implied to pay for such service, be illegal and void. It seems to us that the expenditure for the services of the cowboys, which was a part of the consideration of the note, was for the accomplishment or doing of something which was illegal or inseparably connected with that something; and therefore a claim for reimbursement could not on account of the taint of illegality be recognized or upheld.

The rule is that, when a contract is bad in part it is bad altogether when the two cannot be accurately separated. Within this rule one entire consideration cannot be separated though composed of distinct items, some of which are legal and others illegal. And this rule prevails in Oklahoma — Garst v. Love, supra— and in this State. [Kansas City v. O’Connor, 82 Mo. App. 655; Malone v. Fidelity Co. 71 Mo. App. 1; Friend v. Porter, 50 Mo. App. 89; Peltz v. Long, 40 Mo. 532.] As has already been stated that a part of the care bestowed on Hudson’s cattle by the plaintiff was by the means and nse of the unlawful inclosure and the cowboys who maintained such inclosure, we cannot doubt that as to the part of the claim for keeping the cattle in the pasture was illegal and therefore the note must be held to have been given without any supporting consideration.

It is true this action is on the contract of guaranty and not the note, but the law is quite well settled that when the principal obligation is void for illegality that that infirmity will extend to and vitiate the contract of guaranty and will constitute a defense open to the guarantor in an action on the guaranty itself. [Kansas City v. O’Connor, 82 Mo. App. 655; Wilkerson v. Hood, 65 Mo. App. l. c. 494-5; Sedalia Ry. Co. v. Smith, 27 Mo. App. 371; Heman v. Francisco, 12 Mo. App. 559; Sumner v. Summers, 54 Mo. 340.] En passant, we may say that an examination of Cherokee, etc., v. Cass, etc., 138 Mo. 394, will show that there is nothing in that case trenched upon by our ruling in this.

The conclusion therefore must be that under the pleadings and evidence the defendant was entitled to a submission of tbe case upon tbe theory of its refused instructions already referred to.

The defendant further complains of the action of the court in refusing its instructions VI, VII, and IX, as follows:

“VI. If you believe from the evidence that the note in suit was given by Hudson, and guaranteed by defendant, in consideration that the plaintiff would release certain cattle, and to obtain the release of certain cattle, which the plaintiff was then holding as security to insure payment to himself of a debt claimed by him to be due from Hudson, and if you further believe from the evidence that the debt which plaintiff claimed to be due by Hudson, and for which plaintiff was holding the cattle as security, was owed even in part for the pasturing of these cattle within, and for keeping them from straying by means of a fence erected on the public lands of the United States in Oklahoma, then you are instructed that the detention of the cattle by plaintiff for the purpose of securing such debt so claimed to be due by the plaintiff was unlawful, and that, even although the plaintiff released the cattle upon the giving of said note with defendant’s signature on the back thereof, there was no consideration either for Hudson’s note, or for the defendant’s signing its name on the back thereof, and your verdict must be for the defendant.”

“VII. The court instructs the jury that if you find from the evidence that the note in suit was given by Nick Hudson to plaintiff in part or in whole to settle an account or bill of plaintiff against said Hudson for the herding or keeping within the fences or inclosures of plaintiff the cattle of said Hudson or for the pasturage or grazing charges of Hudson’s cattle while in said inclosures or fences, and that any part of the land on which said cattle were so grazed or pastured or kept from straying by reason of said fences or inclosures, was United States Government land or public domain or greater area than 160 acres, then you must find for defendant and return a verdict accordingly,”

“IX. You are instructed that under the law of this case plaintiff had no agister’s lien on the cattle of Hudson and had no right to detain the same, and if you believe from the evidence that Tandy imposed as a condition for peacefully’surrendering the said cattle that defendant should guarantee the note in suit and that the note was for a pasture bill due Tandy for pasturing or caring for said cattle and that defendant complied with said condition in order to peacefully get possession of said cattle, then you are instructed that said guaranty was obtained by duress of goods and was unlawful and your verdict must be for the defendant.”

The evidence here showed that the defendant had a mortgage on the Hudson cattle and sought to take possession of them under it. While the plaintiff had possession of the cattle he had no agister’s lien on them for the keep and feed. An agister’s lien did not exist at common law — Stone v. Kelley, 59 Mo. App. 214; Pickett v. McCord, 62 Mo. App. 467 — which by adoption was in force in Oklahoma. It was conceded that there was no statute in that territory giving any such lien. Besides this, the defendant’s mortgage was antecedent to the agistment lien had there been such, as there was not. [Stone v. Kelley, supra.] The plaintiff’s right in'any event was subordinate to that of the defendant. He held possession of the cattle and would not surrender that possession to the defendant unless it would pay his illegal charge for the keep and care of the same. It was in November and the near approach of the coming winter warned,defendant that the cattle must be removed to where they could be cared for and fed if it desired to preserve its security. Hudson “was not worth 15 cents” and in fact “had laid down,” and so could not and would not arrange for the further keeping and care of the cattle elsewhere which was necessary. The defendant, in view of these conditions, had sent its secretary and treasurer to Oklahoma for the purpose of getting possession of the cattle which was denied to him by the plaintiff unless the latter’s illegal charges for the keeping of them were first paid. He was practically confronted with the question whether or not he should pay the plaintiff the amount of these charges or suffer the serious consequences to be reasonably apprehended from a refusal to do so. The payment under such circumstances — or, which was in effect the same thing, the guaranty of the Hudson note — it seems to us was under an urgent necessity — under a kind of moral duress. The evidence, we think, tends to prove that the defendant could secure the release of its security from plaintiff’s-hands only by the endorsement of its guaranty on the Hudson note. The guaranty was not voluntary and without an immediate and urgent necessity. All of the elements of moral duress were present in the transaction. The guaranty must be deemed to have been exacted and procured under duress and not of defendant’s free will. By reference to the late case of Wells v. Adams, 88 Mo. App. 215, it will be seen that what is there said is so pertinent here as to relieve us from saying more in this connection. To the same effect are Niedermeyer v. Curators, 61 Mo. App. l. c. 659-60; Wilkerson v. Hood, 65 Mo-. App. 491; Wolf v. Marshal, 52 Mo. 171.

It is thus seen from what has hereinbefore been stated that the defendant ought not to be held on the guaranty in suit if he was compelled to execute it only through duress of goods and extortion practiced on him by the plaintiff. It follows from these considerations that the -instructions last referred to should have been given .

Since it is our opinion that those given supplemented by those which we have concluded should have been given present a fair and full expression of the law applicable to the facts of the case, the others refused for defendant need not be noticed. They were all, as we think, properly refused.

Accordingly, the judgment will be reversed and the

cause remanded.

All concur.