Pfau v. Lorain

Ohio Superior Court, Cincinnati

Pfau v. Lorain

1 Cin. Sup. Ct. Rep. 73

DecidedOctober 15, 1870

StatusPublished

This text of 1 Cin. Sup. Ct. Rep. 73 (Pfau v. Lorain) is published on Counsel Stack Legal Research, covering Ohio Superior Court, Cincinnati primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Pfau v. Lorain, 1 Cin. Sup. Ct. Rep. 73 (Ohio Super. Ct. 1870).

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Opinions

Storer, J.,

gave the opinion of the court.

The plaintiff claims that there is error in the record in this case, committed by the judge who tried the case at Special Term, in this: 1st, that judgment was rendered against one defendant and in favor of the other, when the cause "of action was joint, against both as partners; 2d, that the judge finding the liquors were to be used as part of the modus operandi of a gambling house, on that ground gave judgment for the defendant who had answered, and judgment for the whole amount claimed against the other, who was in default.

In thus deciding, we think the court below erred. The [74]*74action was against joint contractors upon the same contract. If one could not be held liable, the other must be permitted to go without day.

It is the duty of the judge, whenever it appears that the cause of action is founded upon an illegal consideration, to dismiss the case. The law will not permit such an agreement to be enforced, nor will it lend its aid in any manner to the plaintiff who seeks to recover thereon. It does not depend upon the willingness of either defendant to permit judgment to be rendered against him, if it is evident that the claim asserted had no legal foundation.

Whenever it is sought to enforce such a demand, and it is clear it comes within the prohibition we have stated, it is the duty of the court to withdraw the case from the jury and non-suit the plaintiff". It can not be permitted that any distinction should be made between the debtors. If the foundation of the suit is opposed to. good morals or is in violation of a statute, there can be no recovery, however willing the defendant may be to admit his liability; for the question at issue is not his assent to an alleged contract, but‘rather whether the contract can be enforced by legal remedies.

Other questions have been argued, but we do not think it necessary to pass upon them. As the judgment was not rendered against both parties defendant, it must be reversed, and the cause remanded.

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Storer, J.,

gave the opinion of the court.

The plaintiff claims that there is error in the record in this case, committed by the judge who tried the case at Special Term, in this: 1st, that judgment was rendered against one defendant and in favor of the other, when the cause "of action was joint, against both as partners; 2d, that the judge finding the liquors were to be used as part of the modus operandi of a gambling house, on that ground gave judgment for the defendant who had answered, and judgment for the whole amount claimed against the other, who was in default.

In thus deciding, we think the court below erred. The [74]*74action was against joint contractors upon the same contract. If one could not be held liable, the other must be permitted to go without day.

It is the duty of the judge, whenever it appears that the cause of action is founded upon an illegal consideration, to dismiss the case. The law will not permit such an agreement to be enforced, nor will it lend its aid in any manner to the plaintiff who seeks to recover thereon. It does not depend upon the willingness of either defendant to permit judgment to be rendered against him, if it is evident that the claim asserted had no legal foundation.

Whenever it is sought to enforce such a demand, and it is clear it comes within the prohibition we have stated, it is the duty of the court to withdraw the case from the jury and non-suit the plaintiff". It can not be permitted that any distinction should be made between the debtors. If the foundation of the suit is opposed to. good morals or is in violation of a statute, there can be no recovery, however willing the defendant may be to admit his liability; for the question at issue is not his assent to an alleged contract, but‘rather whether the contract can be enforced by legal remedies.

Other questions have been argued, but we do not think it necessary to pass upon them. As the judgment was not rendered against both parties defendant, it must be reversed, and the cause remanded.

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Bluebook (online)

1 Cin. Sup. Ct. Rep. 73, Counsel Stack Legal Research, https://law.counselstack.com/opinion/pfau-v-lorain-ohsuperctcinci-1870.