
    Adams Express Company, Appellant, v. John Reno, Clinton Reno, Interpleader, Respondent.
    1. Practice, civil — Pleadings—Garnishment—Continuance, affidavit for. — An. affidavit for continuance in the trial of an'interplea joined under an attachment suit, -which affidavit was entitled as in the cause of the plaintiffs against garnishees in the attachment, was properly refused. , .
    2. Contracts — Unlawful consideration — Money may he recovered hack, when. —Money paid out to he used in efforts to procure pardon for a criminal may be. recovered where it appears the efforts were not made and the agreement was unexecuted. The rule that money, paid for an unlawful consideration cannot be recovered back applies to executed, and not to executory contracts.
    3. Agent, special — Power of to hind a principal. — An agent instructed to pay. over money ón a certain contingency to'a particular person, cannot bind his principal by payment to a differentsperson before the contingency is carried out.
    
      
      Appeal from Cole Circuit Court.
    
    
      Lay & Belch, for appellant.
    All tbe evidence of tbe agreement between Ballinger and Clinton Reno to obtain tbe pardon of John Reno, and tending to show that tbe money was sent to Jefferson City to be paid to Ballinger alone, was wholly inadmissible in support'of tbe claim of tbe interpleader. Tbe agreement itself,' and tbe object and purpose of sending tbe money to this State, were against public policy and contrary to good morals, and a party basing-bis cause of action upon sucb a state of facts, and alleging bis own turpitude, cannot be beard in a court of justice. (Chit. Cont. 657, 678 ; Adams, Adm’r of Rose, v. Barrett, 5 Ga. 404; Rales et al. v. Mayberry, 2 Gall., U. S., 560 ; Bartle v. Coleman, 4 Pet. 184 ; Dixon v. Olmstead, 9 Verm. 810; Randall v. Howard, 2 Black, 585 ; Clippenger v. Hepbaugh,-5 Watts & Sefg. 315; Wooten el al. v. Miller, 7 Sm; & -M. 380; Armstrong v. Tojer, 11 Wheat. 258 ; Roby v. West, 4 N. H. 290 ; Ellsworth et al. v. Mitchell, 31- Me. 247; Dix v. Van Wyck, 2 Hill, 522 ; Rose et al. y. Truax, 21 Barb., N. Y., 361; Guenther v. Dewein, li Iowa, 133 ; White v. Hunter, 3 Roster,: N. H., 128;; Swan v. Scott, 11 Serg.- & R. 155; Clugas v. Penaluna, 4 T. R. 251, 466 ;■ Warned v. Reed, 5.T. R. 304; Kribben v. Haycraft, 26 Mo. 396; Hatzfield v. Gulden, 7 Watts, 152.)
    , H. B. Johnson,, for respondent.
    There is no doubt that the arrangement between Ballinger .and Reno in regard to the pardon is, as a contract, void as against public-policy.- (Kribben v..Haycraft,,26 Mo. 396.) But,.where a person advances money on;an unexecuted, contract, though'tbe contract be void as against public policy, be may recover it .back at any time before thp money is delivered ,or tbe contract fully executed. (Skinner v. Henderson, 10 Mo. 205; Humphreys v. Magee, 13 Mo. 435 ; Gowan y. Gowan, 30 Mo.-472; Mount v. Waite, 7 Johns. 434; Vischer.y. Yates, 11. Johns. 23; Wheeler v. Spe-ncer, 15 Conn. 28; McAlister v. Hoffman, 16 Serg. & R. 147; Rucker v. Wynne, 2 Head, 617; House v. Kenney, 46 Me. 94 ; Shannon v. Banner, 10 Iowa, 210.)
   Wagner, Judge,

delivered the opinion of the court.

This was' a suit instituted by attachment, by the plaintiff, an incorporated company, against John Reno, a convict in the Missouri penitentiary, to recover damages for a robbery alleged to have been committed by him at Seymour, Indiana. John Reno appeared by attorney, and filed an answer denying all the material allegations in the petition. Over $4,000 in United States currency was attached in the hands of the Jefferson City Savings Association as his property. Clinton Reno appeared and filed his interplea, claiming the money attached as his property. To this interplea there was an answer filed, and upon the issue as thus made up the cause was tried. After hearing the evidence, the jury rendered their verdict, finding that the property belonged to the interpleader, and upon this verdict the court gave judgment in his behalf.. From that finding and judgment the plaintiff appealed to this court.

The appellant' complains in the first instance of the action of the court in refusing to grant a continuance. When the cause was called for trial an affidavit was submitted praying for a continuance on the ground of the absence of material witnesses, whose testimony could not be obtained or produced at the trial at that term. The affidavit was entitled “ The Adams Express Co., plaintiff, against John Reno, Clinton Reno, D. A. Wilson, P. T. Miller and Philip E. Chappell, garnishees, defendants.”

The court overruled the motion for a continuance, for the reason that it did not appear that the affidavit had any reference to the controversy pending between the appellant and the inter-pleader. The affidavit was distinctly entitled as in the cause of the appellant against John Reno and the garnishees in that action; and as the issue joined on the interplea constituted a wholly' separate cause, there was nothing to show that the affidavit was made with any reference.to this proceeding. Under such circumstances we cannot say that tbe court erred or abused its discretion in refusing tbe continuance.

Upon tbe merits tbe facts seem to be these: John Reno was sentenced to tbe Missouri penitentiary for robbing tbe county treasury of Davies county. Tbe County Court of Davies county authorized Ballinger, tbe sheriff of that county, to submit a proposition to Clinton Reno, that if be (Clinton) would pay the sum of $5,000 toward reimbursing tbe county of tbe amount robbed, then the judges of tbe County Court and Ballinger would use their influence with the governor to procure a pardon for John. In accordance with this proposition, Clinton Reno, who resided in Indiana, .endeavored to raise tbe $5,000 for tbe purpose contemplated, but could only obtain tbe sum of $4,400. This amount be sent by bis sister Laura to this State, thinking that Ballinger might be induced to take it and effect tbe pardon. He instructed Laura to. bring tbe money back with her in case tbe pardon was not procured, and to pay it to no one but Ballinger. When she arrived at Jefferson City she did not see Ballinger, and nothing was done toward a pardon; and when she was about to return home she was persuaded by Wilson, tbe warden of tbe penitentiary, to leave tbe money with him, and that Ballinger might come and accept it. She informed him of Clinton’s instructions as to bringing tbe money back, but was finally induced to leave it. Wilson gave her a receipt for it, and then deposited it in tbe bank for use of John Reno. When Laura returned home Clinton was greatly displeased with tbe disposition she bad made of the money, and expressed bis decided disapprobation of her course in disobeying bis instructions. John Reno *was never pardoned, nor does it appear that any efforts were made looking to that end. It is now insisted that, as tbe money was to be used for an illegal purpose, tbe law will not assist Clinton to recover it, or in anywise help him in regaining its possession.

No principle is better settled than that a contract in violation of law or against public policy cannot be enforced in tbe courts of tbe country. In all such cases tbe courts will not interfere, and tbe parties will be left where their conduct has placed them. An agreement to pay a certain sum for tbe exercise of influence in procuring a pardon or the commutation of a sentence is utterly void as against public policy, and incapable of enforcement in the courts. (Kribben v. Haycraft, 26 Mo. 396.) But an examination of the cases will show that this rule applies to executed contracts and agreements. Where parties have been guilty of turpitude in entering into illegal agreements, or have performed acts which are stigmatized as against public policy, the. courts of .the country furnish them no redress. But if propositions have merely been made contemplating such purposes, but nothing has been done to finally accomplish or consummate them, they stand (in a very different attitude. The moral stain .has not attached, and the. guilt has not been carried .out. The doctrine applies solely to executed contracts,, but I.have never seen any case which . .would ..warrant its application to contracts which . are executory. , ,

Betting on horse-racing.is.illegal, and it has been held that where a person deposits money with a stakeholder, to be held to abide the result of a horse-race, he may. institute a common-law action and recover the same at any time before the bet has been determined, and that the recovery may be without reference to any provision in the act concerning gaming. (Humphreys v. Magee, 13 Mo. 435.)

, In the case of Skinner v. Henderson, 10 Mo. 205, the question was directly presented, and it .was decided that an action would lie to recover back money paid under an.illegal agreement, at any time before the, agreement was executed.. In the opinion the.court used this language: “The rule in..respect of money paid on illegal contracts appears, in general, to he that money so advanced may be recovered in an action for money had and received, while the contract remains executory, because a violation of the law is thereby prevented; but if the contract be executed, it cannot .be recovered back. When both parties are in pari delicto, .melior est conditio defendentis, not because he is favored in law, but because the plaintiff must draw his justice, from pure squrces. (Bul. N. P. 132; Douglas, 470.”)

Ifhe same. principle, was adjudged .in Gowan’s Adm’r v. Gowan, 30 Mo., 472, it being there held that where a debtor deposits personal property in the bands of another as bailee, with a view fraudulently to protect it from his creditors, such bailee cannot avail himself of such fraudulent intent to defeat an action brought against him by the debtor for- the recovery of such property.

These citations from our court are abundantly sufficient to show the established doctrine in this State.

It is not pretended that there was any executed agreement in this case. In fact, it can hardly be said there was any agreement at all. A proposition was made by a party, but the record does not show that it was definitely accepted by the other. Five thousand dollars was the sum held out as the amount on which steps were to be taken looking to the release. Clinton was unable to raise that sum, and there is no evidence that he agreed to pay that or any other amount. He sent what money he had to see if anything could be done, but no arrangements were subsequently made,-and it does not appear that the matter was ever entertained or talked of after the money was sent to this State.' Clearly, there is nothing here to place him within the principle of the rule, or preclude his recovering the money.

It is further contended that Clinton parted with all interest in the money when it was deposited in the bank to the use of John, and that if he intended to retain the title he should have given notice of his dissent from the disposition that was made of it. But the parties who received the money were apprised' of the special circumstances surrounding the deposit. The money was left with Wilson to be paid out in a particular event and manner to Ballinger when John was pardoned. It was placed in bank wholly for that purpose, though nominally for the use of John. But it was not the exclusive and absolute property of John, and was never intended to be so. Laura was acting as a special agent, appointed for a particular purpose, and she could not bind her principal by any act beyond her authority. (Tate v. Evans, 7 Mo. 419.) She had no authority to transfer the money to John, or to anybody else except Ballinger, and only to him upon the happening of a particular event. The law will not presume or imply a ratification on the part of Clinton of Laura’s unauthorized acts as to any party bere contesting bis right to the money. The view we have taken disposes of the instructions and renders it unnecessary to give them an especial consideration.

Upon an examination of the whole record we are decidedly of the opinion that the judgment is right and ought to be affirmed.

The other judges concur.  