Hodler v. Hodler

HARRIS, J.,

Dissenting in Part. — I concur in the view that, under the rule established by recognized authorities, the contract made between Delia Hodler and Louis Hodler on January 8, 1915, was, on account of the attending circumstances, in contravention of *209public policy. I also concur in the view that the plaintiff is not entitled to any affirmative relief on account of the Tierney note and that she is not entitled to a return of any moneys paid by her to the defendant or to Eliza Stone; but I dissent from the conclusion that the plaintiff is entitled to any affirmative relief whatsoever on account of the $16,000 note and mortgage.

The record presented on this appeal convinces the writer that the litigants are in pari delicto and that this result is inevitable under any and every rule by which we are accustomed to gauge and measure human conduct. If the motive which prompted the one to sign the contract was sordid, the motive which prompted the other was equally gross. As the writer views the record the evidence utterly fails to show that the plaintiff acted under duress; but upon the contrary her every act was voluntary, although influenced by motives which are not invulnerable to criticism.

The illegal purpose of the contract of January 8, 1915, was consummated prior to August 8, 1917, the date when this suit was commenced. Not only was the suit for a divorce prosecuted to a decree but also the sum of a thousand dollars agreed to be paid by the plaintiff was actually paid by her, the Tierney note agreed to be transferred by her was in fact transferred and the $16,000 note and mortgage agreed to be executed and delivered by her were in truth made and delivered by her to the defendant; consequently so' far as the provisions of the contract of January 8, 1915, are concerned they were executed. It is contended, however, that the contract of January 8th must be deemed to be an executory contract because the $16,000 note remains unpaid. In Cincinnati, H. & D. R. Co. v. McKeen, 64 Fed. 36, 46 (12 C. C. A. 14, 25), a precedent *210in all its essential particulars exactly parallel with, the case now under discussion, Mr. Justice Harlan, when deciding whether a contract providing for a note continued to be an executory contract while the note remained unpaid, said:

“It [the contract] cannot be deemed to have been executory because of the nonpayment of the note for $669,150 prior to the commencement of this suit. The written agreement of June 1, 1887, so far as it related to the balance of the price of the stock sold to Ives, after crediting the cash payments of $250,000 and $639,500, required only the execution and delivery of his note for a specified amount, containing certain provisions, and to be secured by the stock to be delivered to McKeen as collateral. ’

Neither the plaintiff nor the defendant should be granted any affirmative relief, but the court ought on its own motion to dismiss this suit and leave both parties exactly as the court found them: Cincinnati H. & D. R. Co. v. McKeen, 64 Fed. 36, 46 (12 C. C. A. 14); Cullison v. Downing, 42 Or. 377, 383 (71 Pac. 70); Ah Doon v. Smith, 25 Or. 89, 94 (34 Pac. 1093); Jackson v. Baker, 48 Or. 155, 157 (85 Pac. 512); Mitchell v. Coach, 83 Or. 45, 51 (153 Pac. 478, 162 Pac. 1058); 13 C. J. 492, 501, 502.

The fact that the defendant has asked for affirmative relief in nowise alters the rule which ought to be applied in this proceeding. Finding as we do a contract in contravention of public policy and the contract of January 8, 1915, executed so far as concerns the $16,000 note and mortgage, this court ought to dismiss the suit without relief to either party: Cincinnati H. & D. R. Co. v. McKeen, 64 Fed. 36, 46 (12 C. C. A. 14).

Benson, J., concurs.

*211Modified as to costs and rehearing denied February 10, 1920.