Bernard v. Lüpping

32 Mo. 341

• Court: Supreme Court of Missouri
• Decided: March 15, 1862
• Status: Published

Opinion

Dryden, Judge,

delivered the opinion of the court.

The defendants were the keepers of Hyde Park, in St. Louis, a place of public amusement of extensive resort, where various sports were provided for the entertainment of visitors, such as quoits, ten-pin alleys, shooting-galleries, swings, and flying-horses ; and where beer, wine, ice-cream and other refreshments were sold and consumed; and to add to the attractions of the place of Sundays, the services of a band of musicians were in requisition. The plaintiff, it seems, was the leader of a musical band, and was under contract with the defendants, by which he was to render them the services of his band on Sundays at the sum of fifty dollars per day in good weather, but in bad at twenty-five dollars. On Sunday, the 10th of July, 1859, the plaintiff was on hand, in full force, in due time, ready for the performance, but the defendants, whether without cause or for good cause is not material, refused to accept his services. The plaintiff then sued the defendants, before a justice of the peace, for fifty dollars’ damages for breach of the contract, where he recovered a verdict and judgment, from which the defendants appealed to the Law Commissioner’s Court, where a trial was had resulting as the first — from which last judgment the defendants have appealed to this court.

On the trial in the Law Commissioner’s Court, after the plaintiff had proved the contract and its breach, and the character of the performances and exercises, as above stated, at Hyde Park, the defendants asked the court to instruct the jury that, upon the plaintiff’s own evidence, he could not recover a verdict; but the court refused so to instruct. The instructions ought to have been given. The plaintiff had himself shown that the work contemplated by his contract had none of the characteristics of “ the household offices of daily necessity, or other work of necessity or charity,” but was of a kind in plain violation of a wholesome statute, and its performance was from considerations purely mercenary. The law could not, without casting reproach upon itself, lend a helping hand, as in this case it is asked to do, to enforce a contract made in contempt and disregard of the law.

Let the judgment be reversed and the cause dismissed ;

the other judges concurring.