Heidenheimer v. Beer

155 S.W. 352, 1913 Tex. App. LEXIS 376

• Court: Court of Appeals of Texas
• Decided: February 26, 1913
• Status: Published

Opinion

KEY J.

(after stating the facts as above). Appellant’s first assignment of error complains because the trial court overruled his demurrer to appellees’ petition, the contention being that the petition shows upon its face that appellees were seeking to enforce or obtain a benefit resulting from an illegal contract between the parties. The right of recovery asserted in the petition is not founded upon the contract referred to, but is based upon the fact that, on account of a mistake in bookkeeping, appellees had paid to appellant a certain sum of money that they did not owe him, and to which he was not entitled. The case is not analogous to Seeligson v. Lewis, 65 Tex. 215, 57 Am. Rep. 593; Railway Co. v. Johnson, 71 Tex. 619, 9 S. W. 602, 1 L. R. A. 730; Logan v. Norris, 100 Tex. 228, 97 S. W. 820; Burney v. Blanks, 136 S. W. 806, and other cases cited by counsel for appellant. And the assignment referred to is overruled.

[1] By the second assignment complaint is made because the court, over appellant’s objection, permitted appellees to read in evidence a copy of a certain telegram, without showing an excuse for the failure to produce the original. The telegram referred to was not the basis of the plaintiffs’ suit, but was merely proof of a collateral fact, and therefore it was not necessary to account for the original. Gooch v. Addison, 13 Tex. Civ. App. 82, 35 S. W. 83; Smith v. Eckford (Sup.) 18 S. W. 210; Railway Co. v. Lynch, 99 S. W. 160. “Evidence relating to a matter which does not form the foundation of the cause, but is collateral to the issue, does not properly fall within the best evidence rule, and, although secondary in its character, cannot be excluded on the ground that primary evidence was obtainable.” Cyc. vol. 17, p. 469. Besides, if error was committed in the matter complained of, it was rendered harmless on account of other testimony properly admitted, and not objected to.

The third assignment challenges the finding of the trial court to the effect that ap-pellees had no notice of the fact that appellant was not engaged in purchasing cotton in Texas for actual delivery, and that it was not his intention to demand actual delivery of the cotton purchased by appellees for him; the contention being that that finding is not supported by and is contrary to the testimony. We do not deem it necessary to decide that question, because, if it be conceded that appellees had notice of the fact that appellant did not intend. to demand or accept delivery of the cotton and intended, as he testified, merely to speculate or gamble in cotton futures, such notice would not militate against appellees’ right to maintain this suit. Floyd v. Patterson, 72 Tex. 202, 10 S. W. 526, 13 Am. St. Rep. 787; DeLeon v. Trevino, 49 Tex. 88, 30 Am. Rep. 101; Pfeuffer v. Maltby, 54 Tex. 454, 38 Am. Rep. 631; Haswell v. Blake, 90 S. W. 1127; Smith v. Booty, 49 Tex. Civ. App. 628, 109 S. W. 979; Beer v. Landman, 88 Tex. 455, 31 S. W. 805.

[2] In Floyd v. Patterson, supra, the Supreme Court held that a broker who was particeps criminis in a wager contract on the future price of wheat, and who had collected the winnings for his principal, could be compelled, at the suit of the principal, to pay over the winnings; and the following rules of law were announced: “A contract for the future delivery of stocks, produce,» or other merchandise in which an actual delivery is not contemplated, 'but only a payment of the difference between the contract price and the value of the article at the time agreed on, will not support an action. If, however, the contract has been completed, another contract collateral thereto and supported by new consideration may be enforced. The law implies a promise on the part of the agent to pay over to his principal money received for him, and the illegality of the contract, by virtue of which the money was collected, affords no defense.”

[3] The rulings made in that case are conclusive of the rights of the parties in this case, and settle the law in appellees’ favor, even though they may have known of appellant’s intention to violate the law, and may, as brokers, have aided him in so doing. They are not suing to enforce that contract or to secure any right resulting to them therefrom. They are suing to enforce appellant’s implied promise to refund to them money paid to him by mistake, and to which he had no right, either in law or morals.

With some exceptions, created for reasons of public policy, the courts are open to every one who has a complaint to make; and it is immaterial whether he be Jew or Gentile, Christian or pagan, saint or sinner. Therefore, while the courts will not aid in the enforcement of a contract that violates the written law of the state, or contravenes .public policy, the mere’ fact that it incidentally appears that a plaintiff has thus offended will not defeat his right to a recovery, which otherwise he would be entitled to. Sinner though he may he, the law will redress his wrongs, though his adversary be a saint (which, however, is not the case in this instance). Sainthood is not a prerequisite to entering the portals of the courts; and if it were few litigants (and perhaps no lawyers) would enter therein, and the judges could go fishing as often as they heard the call of the waters. Nor will it be amiss to say (as probably will be said) that if such test Should be applied to the bench, many judges (including this writer) would.be “recalled” ; for it is here and now frankly conceded that the adoption of such test would create more vacancies than the bar could furnish saints to fill.

We conclude that no error has been shown, and the judgment is affirmed.

Affirmed.