Bishop v. Honey , 34 Tex. 245 ( 1871 )

Walkee, J.

This action was brought in the Galveston County Court. Honey, the plaintiff below, sued upon a written contract' with Bishop, the defendant. It appears from the contract that Honey undertook to build a house for Bishop. She agreed to pay him five hundred dollars on the third day of November, 1867, and a like sum monthly until the payment amounted to $4500. The contract was recorded in the clerk’s office of the county. The mechanics’ lien was provided for in the contract between the parties.

It appears that the lot on which the house was to be built belonged to John Brown, but his co-appellant, Mary Bishop, held a lease over it. In answering the plaintiff’s action, Bishop, after general demurrer and denial, plead her coverture - specially, and further that there was fraud practiced upon her by her own attorney, in substituting the contract sued on for a prior contract between the parties. She averred a failure on the part of the plaintiff to perform his contract, and plead in reconvention that she had paid the plaintiff five hundred dollars in advance, which she prayed might be returned to her. To these pleadings the plaintiff excepted.

By agreement of parties the action was consolidated with two other actions growing out' of the same contract, and was transferred to the district court for trial.

The plaintiff subsequently filed an amended petition, in which he alleged that he had performed eight-ninths of the work, and furnished a corresponding amount of material for the house; that he had been compelled to abandon the work for the reason that the defendant had not paid for it under the contract. He claimed four thousand dollars for his work and material, and prayed for a decree foreclosing his lien.

To the amended petition the. defendant demurred, and set up substantially the allegations contained in her answer to the original petition.' The plaintiff again excepted to the plea of coverture, and to the plea of fraud and denial of the contract, also denying the coverture.

On the twenty-fifth day of May, 1869, the plaintiff below filed a petition making John Brown a defendant to the action, averring that in the previous month of April, and during the pendency of the suit, Brown had removed the house from lot No. 1, block No. 27, in the city of Galveston, to another lot belonging to him, without the consent or authority of the plaintiff; that the house was worth $4000, and was subject to the.lien for $4500. We quote from the appellant’s brief as follows:

i “ Brown answered twenty-eighth of June, 1869, by general demurrer and special exception, that the petition alleged no property in Bishop to the lot sought to be sold. Also, by pleas, that the lot was his; that the house had been put there without his consent; that it was a nuisance, injured his property, yielded no revenue, was badly built, and worthless; that he took it in consideration of debt due him by Bishop, and moved it off the lot to make it useful to him, at a round expense of $3100, which he prayed might be allowed him from the proceeds of sale, if the house was sold. Appellee thereupon amended by alleging that Bishop held the property under lease from Brown, paid rents promptly, and that Brown moved the house to defeat his lien. Broion is notified to produce the lease. Appellants filed joint amendment thirtieth of December, 1869, pleading in bar of the action, that the house was knowingly built by appellee for a house of public prostitution, and he should not be, therefore, allowed to recover for his work.”

Having thus presented the issues made by the pleadings, we proceed to examine the grounds upon which the appellants seek a reversal of the judgment.

The plea of coverture is one in which the defendant Bishop denies her liability to be sued as a feme sole. Is this plea, then, intended to defeat the "action or the writ? It does not deny the cause of action, and therefore could not defeat it; it must, then, go to the writ and be treated as a plea in abatement, and as such it should have been sworn to under our statute; and this not having been done, the plea should have been stricken out on demurrer. The same may be-said of the answer setting up fraud and former contract; however' ingeniously plead, this matter amounted to no more nor less than the plea of non est factum to the contract sued on, and should have been sworn to.

That defense which seeks to exonerate the appellant Bishop from liability on the contract, upon the ground that she was building a house for the purpose of plying her vocation therein as a prostitute, and that the appellee knew this to be the design of the house, amounts to little less than absurdity.

Were we to follow the laborious and painstaking example of counsel for appellee, in hunting up and citing authorities, we fear we might be charged with compiling a book, rather than deciding the case.

This question has arisen in so many forms and shapes that it does appear an unnecessary labor to refer to authorities at this late day; but out of compliment to the learned counsel- we will cite a few of the authorities from his brief: “ Mere knowledge by the vendor of goods, of the illegal purpose for which they are to be used, is no defense against an action brought to recover their price.” (Gaylord v. Soragen, 32 Vermont, 110.) “A clerk in the office of a dealer in lottery tickets in the State of Indiana, where lotteries are prohibited by law, can recover his salary.” (Riggs v. Adams, 12 Indiana, 199.) “ The vendor of billiard tables can recover the price of such tables, although used for gambling purposes.” (Beckel v. Sheets, 24 Indiana, 1 ; Bowry v. Bennett, 1 Campbell, N. P. R., 348 ; Williamson v. Watts, Id., 553 ; Loyd v. Johnson, 1 B. & P., 340.) Mr. Chitty says: “An action for clothes sold to a prostitute, or for washing her apparel, cannot be defeated merely by showing that the plaintiff was aware of the defendant’s situation, although from the nature of the articles the plaintiff might have known the object and purpose for which they were intended.” (Chitty on Contracts, 735 et seq.)

If the plaintiff is in any way the gainer by, or the partner in an illegal contract, one which is contra bonos mores, he cannot recover upon such contract; he cannot recover upon it if it be shown that he is particeps criminis.

But all houses are not built for the purpose of prostitution, nor are all billiard tables to be used for gambling purposes; and to defeat an action by such a defense as is made in this case, it must be shown that the plaintiff is himself directly connected in the criminal or illegal act.

In the case at bar the house was not to be paid for out of the proceeds of an illegal vocation. "It was to be paid for as the work progressed upon it.

Perhaps there are no authorities bearing more directly upon this question than that of Armfield v. Tait, 7 Iredell, law, 260, and Mills v. Johnson, 23 Texas, 308.

It is urged that ¡the appellant, Brown, is not fairly treated in the decree ©f the district court, but we fail to see any good ground of complaint in him. He had leased the lot to Mary Bishop; she, by her contract with Honey, had procured a house to be built upon it, worth $4500 when completed; eight-ninths of the work had been done, and material furnished, and now, pending suit between Honey and Bishop, Brown took possession of the house and converted it to his own use. He certainly knew, if Honey gained his case, -this house must be subjected to the payment of his debt. Whatever he did, he did lis pendens, and he must answer to Honey for any damages he has sustained thereby.

We think the judgment and decree of the district court are in all respects just and equitable, and therefore affirmed.

Affirmed.