De Wit v. Lander , 72 Wis. 120 ( 1888 )

Lyon, J.

1. The undisputed evidence given before the justice proves that the contract in suit was made by the plaintiff for and on behalf of himself and one Wickles, who was his partner, and the cause of action belonged to them jointly as such partners. The issue made by the plea in abatement should therefore have been found for the defendant. This error alone is fatal to the judgment.

2. The judgment is erroneous for another reason. An ordinance of the city of Green Bay (in which city such wwk was performed), in force w-hen the contract was entered into, prohibited any person from exercising the calling of a night scavenger in that city without first obtaining a license for that purpose and giving a bond therein prescribed for the performance of the provisions and conditions of such ordinance. It also provided that any person engaging in such business wfithout such license should be subject to a fine not exceeding $50. It was proved on the trial that the plaintiff had no such license.

If, as the justice found, the contract in suit. was made by the plaintiff alone, it was in violation, of the ordinance, and therefore unlawful. The plaintiff being obliged to rely upon such illegal contract to maintain his action, cannot recover. No rule of law is better settled than that, if a party claiming a right to recover a debt is obliged to trace his right through an illegal contract, he cannot recover. Melchoir v. McCarty, 31 Wis. 252; Walsch v. Call, 32 Wis. 159; Troewert v. Decker, 51 Wis. 46; Wells v. McGeoch, 71 Wis. 196.

3. The circuit court rendered a judgment for the plaintiff for the amount of the justice’s judgment, less the illegal items of costs, in accordance with the practice sanctioned in Wold v. Ordway, 68 Wis. 176. This judgment was for .$30.75. It included an item of $12.26 justice’s fees, which the defendant paid when he took his appeal. In any event, this item should have been deducted from the recovery in the circuit court.

For the foregoing reasons the judgment of the circuit court must be reversed, and the cause will be remanded with directions to that court to reverse the judgment of the justice.

By the Court.— Ordered accordingly.