
    CONTRACTS CONTRA BONOS MORES.
    [Circuit Court of Hamilton County.]
    Edward Pape v. Standard Oil Company.
    
    Decided, December 3, 1903.
    
      Contracts — Violating Morality or Public Policy— Not Actionable— And It is not Necessary the Defendant Plead the Objection— Duty of Courts with reference Thereto.
    
    A contract by tbe terms of wbicb tbe parties undertake to deceive and defraud tbe public is not enforceable, and where tbe defendant does not plead tbe objection, a court will refuse upon its own motion to entertain an action founded tbereon.
    • The plaintiff alleged in his petition that he had been the driver of an oil wagon, and originally in the employ of one J. W. Austin, an oil dealer, who in 1894 sold out to the Standard Oil Company. The plaintiff continued as driver on the same route after the sale, but at the request of the Standard Oil Company he placed his own name upon the wagon instead of that of the company. He alleged that in consideration for his so doing the company agreed to pay him' $15 a week, plus whatever his services might be reasonably worth on account of his holding himself out as the owner of the route. He continued under this arrangement for seven years, making the bills during all of that time in his own name, and leading his customers in other ways to believe that the route belonged to him. The company when called upon refused to allow him anything beyond the $15 per week which had been regularly paid to him, and he thereupon brought suit for $10,500 for the special services thus rendered during the seven years.
    
      Swing, J.; Giffen, J., and Jelke, J., eoncnr.
    
      
       Dismissed by tbe Supreme Court for want of preparation, October 18, 1904. For opinion in tbe court below, see 2 N. P. — N. S., 514.
    
   The gist of the plaintiff’s action is thus stated in his petition:

“Plaintiff further avers that if the various customers knew that the Standard Oil Company was furnishing the oil, that it (the Standard Oil Company) would lose all of its customers; and by reason of said knowledge, and knowing that it would lose said customers if it were made known that the defendant, the Standard Oil Company, was the owner of said route; and for the further reason that the Standard Oil Company instructed and directed said plaintiff to state that he was the owner of said oil route, and by his name, the defendant, the Standard Oil Company, reaped a great profit which it otherwise would not have received; and by placing his name upon said oil wagon, and by rendering bills and receipting them in his own name and making it known to the various customers that he was the owner of said oil route, his services in that respect were valuable and profitable to the defendant, and that for such services in using the name of the plaintiff said defendant, the Standard Oil Company, made a great profit.”

In other words the plaintiff’s claim is founded on an agreement with the defendant to lie to and deceive and defraud the public, and having thoroughly performed his part of the contract, he asks a court of justice to compel the defendant to perform its part.

Ex turpi causa non oritur actio is a maxim of the law (Broom’s Legal Maxims, 729).

In Wright v. Rindskopf, 43 Wis., 348, the court says:

“They do not hold, we know of no case which does, that where a contract is in terms contra bonos mores, it is necessary for the ' defendant to plead the objection; or that a court will proceed to judgment upon it, both parties even assenting. If the objection be not made by the party charged, it is the duty of the court to make it on its own behalf. Courts owe it to public justice and to their own integrity to refuse to becolne parties to contracts, essentially violating morality or public policy, by entertaining actions upon them. It is judicial duty always to turn a suitor upon such a contract out of court, whenever and however the character of the contract is made to appear.”

David Davis, for plaintiff in error.

James B. Jordan, contra.

No other authorities need be cited. The judgment should be affirmed.  