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clear that the questions involved in the prior suit were whether Boyd was the owner of the cattle and had the right to their immediate possession. In the litigation over these questions, the condition of the cattle as to their probability to endanger the health of other cattle in the vicinity where they were driven was testified to, and before the court for consideration; but the determination of the questions in that case does not affect or conclude Moore in this case. There being no error in the ruling of the court in sustaining the plaintiff's demurrer to the defendants' second ground of defense, the order and judgment of the district court will be affirmed. (All the justices concurring.)
(34 Kan. 86)
1. CONTRACT-ILLEGAL IN PART. Where a part only of the consideration of an entire contract is illegal, and the contract is not in its nature divisible or separable, the contract is tainted, and will be treated as wholly void. 2. SALE OF INToxicATING LIQUOR WITH HOUSE-CONTRACT WOID. Where.S. alleged that in 1883 he purchased, in Osage city, Osage county, in this state, from G. a lot and the building thereon, and a large quantity of intoxicating liquors and the fixtures of a bar contained in the building, for the gross sum of $4,000, and no separate price was fixed or agreed upon for the lot, or intoxicating liquors, or the fixtures, and it appeared that neither of the parties had any permit to sell intoxicating liquors, and that S. did not purchase the liquors for medical, scientific, or mechanical purposes, held, that the contract for the purchase of the lot, building, intoxicating liquors, etc., is void, and in contravention of chapter 128, Laws of 1881, commonly known as “The Prohibitory Liquor Law,” and therefore the contract cannot be used as the basis of an action for specific performance.
Error from Osage county.
Charles Skinner brought his action against Augusta Gurlach and Philip Gurlach, alleging that Philip Gurlach, as the agent of Augusta Gurlach, agreed to sell him a house and lot in Osage city, Osage county, in this state, and also a certain stock of goods, wares, and merchandise in the house, for the sum of $4,000; that, through the fraud of Augusta and Philip Guriach, only a part of the real estate had been conveyed by deed to him, and that Augusta and Philip Gurlach refused to convey the balance of the real estate, and refused to deliver any part or portion of the goods, wares, and merchandise so purchased; that the plaintiff agreed to pay, and did pay, for the real estate, goods, wares, and merchandise the sum of $4,000. In his prayer to his petition the plaintiff asked that the deed be reformed; that the defendants be required to convey to him all of the real estate purchased by him, and that he have judgment for $1,500 for the value of the goods, wares, and merchandise which the defendants refused to deliver. To the petition the defendants filed an answer containing a general denial.
v. SP, no.3—17
Trial had at the October term of the court for 1883, before the court, a jury being waived. Upon the trial Charles Skinner testified in substance as follows:
“That he was plaintiff in the action; that he knew the defendants; that the contract between him and Philip Gurlach, on January 12, 1883, was that he agreed to buy the whole building just as it stood, together with the lot; that there was a safe inside; that he did not want to touch that; that he was to give $4,000 for the lot as it was, that is, for the whole building and the contents, excepting the safe and the defendants’ wearing apparel; that he paid $20 to bind the bargain and paid the balance of the $4,000 the next day; that he knew that the defendants were running in the building which he bought a saloon, where liquors were sold in violation of law and without any permit; that he knew there was a stock of liquors, including the bar fixtures, and that he was to have not only the lot and building, but also the stock of intoxicating liquors and whatever else was there, excepting the safe and wearing apparel, for the sum of $4,000; that no separate price was set upon the building or the stock of goods, but all were purchased for the gross sum of $4,000; that it was an entire sale of the real and personal property, including the stock of liquors and saloon fixtures; that the defendants conveyed to him, by deed, a portion of the lot and building, but the deed did not include as much of the building as he purchased.”
After the plaintiff had introduced all his evidence, the defendants demurred thereto upon the ground that the same was not sufficient in law to sustain an action against the defendants, or either of them. At the conclusion of all the evidence, and upon the argument for a new trial, the defendants urged that the plaintiff could not recover, as the contract testified to by the plaintiff was for the purchase of real estate, bar fixtures, and also intoxicating liquors, for which neither party had a permit, and, therefore, that the contract was vicious, illegal, and immoral, and, under the constitution and laws of the state, was void; that the court, under the facts testified to by plaintiff, could give neither of the parties any relief whatever, but must leave them just as it found them. After the testimony had all been introduced, and the arguments of counsel, the plaintiff asked leave of the court to amend his petition by striking therefrom all the allegations in reference to the purchase or sale of any personal property. The court took the motion and cause under advisement. Subsequently, and at an adjourned term of court, held on February 12, 1884, the plaintiff was permitted to amend his petition, and the court rendered judgment, reforming the deed, giving the plaintiff the real estate he claimed, and awarding costs against the defendants. The defendants complain of the rulings and judgment of the court, and bring the case here. Waters & Ensminger, for plaintiffs in error. Ellis Lewis and Wm. Thomson, for defendant in error. HoRTON, C. J. Defendant in error (plaintiff below) has presented his motion to this court to dismiss the petition in error, upon the alleged ground that the case made was not settled and signed within the time required by law, but has filed no brief nor presented any argument upon the merits of the case. It appears from the record that the judgment was rendered on February 12, 1884. Plaintiffs in error (defendants below) were granted to April 12, 1884, in which to make and serve the case. This time was twice extended, and was finally fixed for July 10, 1884. The case was made and served on June 30, 1884, and signed and settled on November 29, 1884; the plaintiff below not being present either in person or by attorney. Upon the settling of the case, an affidavit was submitted to the district judge, showing the time of the service of the case made, and setting forth that the attorney for plaintiff below stated that the case made was true and that he had no amendments to suggest. The motion to dismiss must be overruled. The case was made and served within the time allowed, and the judge had all reasonable time within a year after the rendition of the judgment to settle and sign the case made. While the statute provides for fixing the time in which the case made must be served and in which the amendments must be suggested, the time for settling and signing the same is not prescribed in the statute. Therefore the objection that the case made was not settled and signed within the time required by law is not well founded. Meiwell v. Kirkpatrick, 25 Kan. 13; Hammerslough v. Hackett, 30 Kan. 57; S. C. 1 Pac. Rep. 41; Pierce v. Myers, 28 Kan. 364; Douglass v. Parker, 32 Kan. 593; S. C. 5 Pac. Rep. 178. The demurrer to the evidence of plaintiff below should have been sustained, and the judgment rendered is erroneous. Chapter 128, Laws of 1881, commonly known as “The Prohibitory Liquor Law,” prohibits the sale and barter, directly and indirectly, of all kinds of intoxicating liquors, except for medical, scientific, and mechanical purposes, and makes it a criminal offense for any person to sell or barter, directly or indirectly, any kind of intoxicating liquor, except for some one of such purposes. The plaintiff below claims that he bought, by a single and indivisible contract, a lot and the building thereon, with a stock of intoxicating liquors, including bar fixtures, etc., contained in the building upon the lot, of the value of $1,500. Neither of the parties had any permit to engage in the sale of intoxicating liquors, nor were any of the liquors purchased for medical, scientific, or mechanical purposes. The contract testified to was an entire one; it is not in its nature divisible or separable into distinct parts; therefore the whole contract is void and cannot be enforced; it cannot be used as the basis of an action. Where a part of a consideration of an entire contract is illegal, the contract is tainted, and the courts will not compel its performance. “You shall not stipulate for iniquity. All writers upon our law agree in this: no polluted hand shall touch the pure fountains of justice.” Collins v. Blantern, 2 Wils. 341. The policy of the law is to leave the parties in all such cases without remedy against each other. The courts will not lend their aid to a party who founds his cause of action upon an immoral or illegal act. If, from a plaintiff's own statement, or otherwise, the cause of action appears to arise ex turpi causa, or the transgression of a positive law of the state, there the court says he has no right to be assisted. Whart. Cont. § 340; Korman v. Henry, 32 Kan. 49, 343; S. C. 3 Pac. Rep. 764, and 4 Pac. Rep. 262.
The amendment allowed to the pleadings in no way affected the the contract of the parties, or cured its illegality. The contract not being in its nature divisible or separable into distinct parts, plaintiff below had no right to ignore his purchase of the intoxicating liquors and recover the real estate. He could not thus cover up the illegality of the transaction or agreement in which he participated, nor could he in this manner have the court aid him in separating or purging the illegal from the legal consideration. A part of the consideration of the contract between the parties to the action being illegal, and
there being no means of separating the legal from the illegal part of
the consideration, the enforcement of the contract, or any part thereof, cannot be had in the courts. McBrittney v. Chandler, 22 Kan. 692.
The judgment of the district court will be reversed and cause remanded.
(All the justices concurring.)
(34 Kan. 63) STATE v. BRYAN.
Filed October 9, 1885.
1. CRIMINAL LAW-INFORMATION FOR SEDUCTION.—ALLEGATIONS. Where an information, under section 36, c. 31, Comp. Laws 1879, charges that on November 3, 1884, in the county-of Smith and state of Kansas, one B., a male person, did then and there unlawfully and feloniously obtain illicit connection with one K., she, the said K., then and there being a female person of good repute, of the age of only 17 years, and the said B. did then and there obtain such illicit connection with the said K. aforesaid, at the time and place aforesaid, under a promise of marriage then and there made by him, the said B., to her, the said K., held, that the information sufficiently charges that the prosecutrix was of good repute at the time of the marriage contract, and that the marriage contract was the moving cause or consideration for the illicit connection; and, also held, that the omission to state in the information more specifically that the prosecutrix was a single woman, or the def ndant a single man, at the time of the promise of marriage, is not necessarily fatal thereto. 2. SAME – PROOF OF PARTICULAR ACTS OF ILLICIT INTERCOURSE WITH OTHER MIEN. Upon the trial of a defendant for the offense charged in section 36, c. 31, Comp. Laws 1879, it is not competent for the defendant to prove particular acts of unchastity or specific acts of illicit intercourse by the prosecutrix with other persons. “It is the reputation and the age of the female, and not her previous conduct, that bring her within the protection of the statute.” Bowers v. State, 29 Ohio St. 542. S. SAME—EVIDENCE AS TO REPUTATION OF WOMAN FOR CHASTITY. Where the prosecutrix has recently lived in the neighborhood of the witness, which is about five miles from her own home, and is generally acquainted in that neighborhood, and such witness knows the general reputation of the prosecutrix for chastity in such neighborhood, but does not know her general reputation for chastity in the particular neighborhood in which she resides at the time of the trial, such witness may be permitted to give evidence of her general reputation for chastity in his neighborhood. The means and extent of the
witness knowledge, under the circumstances, are matters which affect the credibility, but not necessarily the competency, of the witness. 4. SAME–W HAT IS REPUTATION FOR CHASTITY—NEGATIVE EVIDENCE. A woman’s reputation for chastity is what the people of her acquaintance generally say of her in this regard; that is, the general credit for chastity which she bears among her neighbors and acquaintances. If a woman’s neighbors and acquaintances say nothing of her, or do not question her character for chastity, then her reputation in this regard should be considered good. The best character is generally that which is least talked about; therefore the negative evidence of a witness, “that he never heard anything against the character of the woman for chastity, in whose behalf he has been called; that is, that he never heard her conduct criticised, condemned, or even talked about,”—is admissible upon the trial, where the reputation of the woman for chastity is in question, and is strong evidence of the woman’s good repute.
Appeal from Smith county.
On December 15, 1884, there was filed in the district court of Smith county the following information, verification and indorsements omitted:
“STATE OF KANSAS, SMITH COUNTY. IN THE DISTRICT COURT FOR SAID
“State of Kansas, Smith County—ss.: I, the undersigned, prosecuting attorney of said county, in the name, by the authority, and on behalf of the state of Kansas, give information that on or about the third day of November, A. D. 1884, in said county of Smith and state of Kansas, one H. B. Bryan, a male person, did then and there unlawfully and feloniously obtain illicit connection with one Hattie M. Kinsley, she, the said Hattie M. Kinsley, then and there being a female person of good repute of the age of only seventeen (17) years. And the said H. B. Bryan did then and there obtain such illicit connection with the said Hattie M. Kinsley aforesaid, at the time and place aforesaid, under a promise of marriage then and there made by him, the said H. B. Bryan, to her, the said Hattie M. Kinsley, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the State of Kansas. R. M. PICKLER, Prosecuting Attorney.”
Trial had at the December term of the court for 1884, before the court, with a jury. The court (SMITH, J., presiding) instructed the jury as follows:
“In this case it is charged that at the county of Smith and state of Kansas, and on or about the third day of November, 1884, the defendant, H. B. Bryan, being a male person, did obtain illicit connection, under promise of marriage, with Hattie M. Kinsley, a female of good repute, and under 21 years of age. To justify a conviction in this case the state must establish by the evidence beyond a reasonable doubt the guilt of the defendant, and every fact in the case essential to show his guilt; that is to say, that before you find the defendant guilty, you must be satisfied from the evidence beyond a reasonable doubt that in the county of Smith and state of Kansas, and at or about the time charged, and within two years prior to the filing of the information, the defendant, H. B. Bryan, being a male person, did obtain illicit connection with Hattie M. Kinsley; that at that time said Hattie M. Kinsley was under the age of 21 years, and was a female of good repute for virtue and chastity; and that the defendant obtained such illicit intercourse with said Hattie M. Kinsley under a promise of marriage. It is essential that