STARR V. LIGHT.

[22 WISCONSIN, 433.]

CONTRACT TO PAY PURCHASE PRICE OF LAND IN WHEAT OF CERTAIN QUALITY, at a specified price per bushel, in annual installments of a specified amount, is equivalent to a contract for the sale of the amounts of wheat to be delivered at the times and price specified; the vendor is entitled to the wheat, or in default thereof, he may recover its actual value at the times specified for its delivery; and the vendee has no right to pay in money, instead of wheat, the amount of the purchase price. And more especially will this rule apply where the contract signifies the intention of the parties that the mode of payment shall not be at the option of the debtor, as where it provides that he may pay more in each year, provided that the additional payments shall be made in wheat at the stipulated price, or in cash, as the vendor may elect.

ACTION upon an agreement to pay the purchase price of land. Judgment for the plaintiff for the whole amount claimed, and appeal by the defendant. The opinion states the case.

E. L. Runals, for the appellant.

A. B. Hamilton, for the respondent.

By Court, PAINE, J. The question presented in this case is one of considerable interest, and has never been decided by this court.

The decisions of other courts are conflicting upon the subject; and it becomes our duty to determine which seems to us to have the better reason.

The plaintiff gave a land contract, by which he sold and agreed to convey the land described on compliance by the purchaser with the conditions to be performed on his part.

The provision in regard to payment was as follows: "And the said party of the second part, for himself, his heirs, executors, administrators, and assigns, does covenant and engage to and with the said party of the first part, his heirs, executors, administrators, and assigns, to pay the said party of the first part, his heirs and assigns, the just and full sum of two thousand four hundred dollars, with interest at ten per cent per annum (payable annually) till paid, in manner following, viz.: The whole amount, principal and interest, to be paid in good, clean, dry, merchantable wheat, equal to the best qual ities of Club and Rio Grande produced on similar land the past year; the price to be seventy-five cents per bushel, and the wheat to be delivered at such place in the city of Ripon

aforesaid as the said party of the first part may from time to time require; the wheat to be delivered at times and in amounts as follows, viz.: Four hundred bushels on the tenth day of September, 1862, and six hundred (600) bushels annually on the tenth day of September thereafter, until the whole amount of principal and interest is paid," etc.

Wheat became worth a much larger sum than seventy-five cents per bushel; and the defendant, who is the assignee of the contract, claims the right to pay in money enough to make up the two thousand four hundred dollars, with interest. The plaintiff claims that he is entitled to the wheat, or to the value of the several amounts provided for at the time when they ought to have been delivered; and there are cases sustaining both positions. Those that support the defendant adopt the theory that provisions like these, in regard to the mode of payment, are inserted only for the benefit of the debtor, and that they give him the privilege to pay either in money or in the articles specified, as he may elect.

I shall not attempt an elaborate review of these cases, but shall simply state the objections which have led us to reject their reasoning, and to adopt that of the opposite decisions.

In the first place, they take an undue liberty with the language of contracts, and insert in them provisions which the parties have not made. When the contract expressly provides that payment shall be made in a specific article at a specified price, they say it need not be so made. They say that such a provision was for the benefit solely of the debtor, when the contract says no such thing, and when that mode of payment may have been the very reason that induced the creditor to make it. They say that because such contracts specify a certain number of dollars as the consideration, that shows that the creditor was willing to sell his property for that amount in money, when perhaps the sum was only fixed in view of the other provision for payment in a specific article, at a specified price. There is no mutuality in the rule they establish. Thus if the value of the article in which payment is to be made falls below the specified price, they all hold that the debtor may still pay in that article at that price. But if the value rises above that price, then he may pay in money. The creditor is to lose by the fall of articles he contracts for, but not to gain by the rise. Such a rule seems intrinsically unjust. For these reasons, even though there was nothing in this contract which distinguished it from many and probably

from all those cases, we should still hold that such a contract was equivalent in all respects to a contract for the purchase of the amounts of wheat to be delivered at the times and price specified. That conclusion is sustained by the following cases: Meason v. Philips, Addis. 346; Edgar v. Boies, 11 Serg. & R. 445; Price v. Justrobe, Harp. 111; Wilson v. George, 10 N. H. 445, 449; Mattox v. Craig, 2 Bibb, 584; Cole v. Ross, 9 B. Mon. 393 [50 Am. Dec. 517].

We do not rely upon that class of cases relating to notes or contracts to pay specified sums in stock or depreciated currency, because in them the stock or currency is properly described by the denomination of dollars.

But there are some provisions that distinguish this contract from any in the cases relied on by the appellant. It is disguished from some of them in the fact that the amounts of wheat to be delivered are specified. This, however, is not very significant. But there is a provision following that above quoted which seems to us very important as showing beyond any question that it was not the intention of these parties that the mode of payment provided should be at the option of the debtor. And if that appears, then, according to all these cases, the intention must govern. After specifying the amount of wheat to be delivered at each installment, the contract proceeds: "With the privilege to the said party of the second part of paying more in each year, provided that said additional payments shall, at the option entirely of said party of the first part, be made in wheat at the above stipulated price, or in cash, as the said first party shall elect." This shows clearly that the vendor intended to secure, and the purchaser to give, the right to the wheat absolutely. They evidently understood that the positive provisions of the contract for that mode of payment, specifying the time and amounts, would secure that result. But when the vendor gave the debtor the privilege of paying more at any of those times, it was feared that such excess, if he should elect to pay more, might not be so plainly provided for. So, to remove all doubt, the option is expressly reserved to the vendor of the land to receive the excess in wheat at the stipulated price, or in money, as he might elect. In view of that provision, which distinguishes the contract from any in the cases cited, there is no room to maintain that the parties intended the mode of payment provided in the contract to be at the option of the debtor.

The judgment is affirmed, with costs.

WHERE DEBTOR AGREES TO PAY BY SAWING INTO LUMBER timber which the creditor is to furnish, and the latter dies before furnishing it, the debtor cannot be compelled to pay in money, nor is there any breach of contract on his part until the timber has been furnished to him, and he refuses to saw it: Hawkins v. Ball's Adm'r, 68 Am. Dec. 755. In Wheeler v. Hartshorn, 40 Wis. 102, it is held that legacies of a number of dollars in bonds or notes and mortgage securities are general, and not specific, legacies, and are payable in the full amount of money named, it being immaterial whether they are paid in money or in bonds and notes; distinguishing the principal case, and Noonan v. Ilsley, 17 Wis. 314, on the ground that the testator had not directed in what specific notes or bonds each legacy should be paid.

LEMON V. GROSSKOPF.

[22 WISCONSIN, 447.]

PROPRIETOR OF LOTTERY WHO EMPLOYS PERSON TO SELL TICKETS, AND RECEIVE PROCEEDS, cannot recover the proceeds from him, the sale of lottery tickets being criminal by statute; for the obligation to pay over the money received for tickets is so connected with the illegal contract to sell them as to be inseparable from it, and a court will not lend its aid to enforce it.

PROCEEDS OF SALE OF LOTTERY TICKETS PAID BY AGENT FOR SALE THEREOF to another agent for their sale, with directions to pay them over to the proprietor of the lottery, may be recovered by the latter from the second agent, for his obligation to pay over this money is disconnected from his illegal contract to sell tickets.

MONEY PAID TO THIRD PERSON FOR USE OF PLAINTIFF may be recovered from such person, though the money is the proceeds of an illegal transaction.

ACTION on a promissory note. The plaintiff was a member of the firm of Briggs, Lemon, & Co., who were the proprietors of a lottery scheme in Chicago, Illinois, called a gift concert. The firm placed in the hands of the defendant a number of tickets, to be sold by him as their agent; and it was agreed that he should retain the money received for the tickets until he became satisfied that the drawing of the lottery was to be fairly conducted. One Kilgore was also employed by the firm to sell tickets, and he was to pay over the money received before the drawing. The defendant sold 258 tickets at one dollar apiece, and retained nineteen tickets himself as a purchaser. Before the drawing, the plaintiff became the sole owner of the scheme. The defendant directed Kilgore before the drawing to pay him all the money received for tickets, to be transmitted to the plaintiff; and Kilgore delivered to him $255, received for tickets. Of this money, ninety-five dollars were delivered without any conditions or instructions, other than that it was money

for the plaintiff obtained from the sale of lottery tickets in Wisconsin; but when he delivered the balance, he told the defendant to retain it until satisfied that "the show was all right," though he had no authority from the plaintiff to attach any conditions to the defendant's transmission of the money. The defendant went to Chicago just before the drawing took place, and being satisfied that it was to be fairly conducted, accounted with the plaintiff for all the money he had received from the sale of tickets, and from Kilgore, and for the nineteen tickets which he had retained for himself, and drew a check upon a bank in Milwaukee, in favor of the plaintiff, for the full amount. This check, however, was not paid, and the defendant afterwards gave plaintiff his note for the amount, and took up the check, and upon the note this action is brought. Judgment for the defendant, and appeal by the plaintiff.

Paine & Co., for the appellant.

Stark and McMullen, for the respondent.

By Court, COLE, J. The counsel on both sides substantially concede that the rule is well settled that courts will not enforce illegal contracts; but they differ as to the application of that rule to the facts of this case. So far as the nineteen tickets which the defendant retained for himself are concerned, it is admitted by the plaintiff's counsel that no recovery can be had. Then the question arises, Was the plaintiff entitled to recover the money received by the defendant for tickets sold by himself? It is insisted that he can recover that money because the illegal contract has been fully executed, the purchasers of the tickets having paid over the same to the defendant for the use of the plaintiff. It is said that when money is paid by one person, on an illegal contract, to the agent of the party entitled to receive it, such agent cannot set up the illegality as an answer to the claim of the principal; that, as between the agent and the principal, the action is not founded on the illegal contract, nor does the obligation of the agent to pay over the money grow out of such contract, but arises from the fact that the agent has received money for the principal. This may be true in some cases, and seems to be the ground upon which Tenant v. Elliott, 2 Bos. & P. 4, Farmer v. Russell, 2 Id. 296, Sharp v. Taylor, 2 Phill. Ch. 801, Owen v. Davis, 1 Bail. 315, and some other cases to which we were referred on the argument, are decided. It seems to us, however, that the