Conte v. Busby

NOURSE, P. J.

Plaintiff sued on a common count for money had and received in the sum of $1,015.20. The cause was tried without a jury. Judgment went for plaintiff against defendant Busby for $145, and for the other defendant for its costs. Plaintiff appeals upon typewritten transcripts.

On April 15, 1929, plaintiff sold to defendant Busby his leasehold interest together with the furnishings and equipment of certain premises to be used as a house of prostitution. In payment Busby gave plaintiff a postdated draft for $1,015.20 drawn in her favor by Wm. Cavalier & Co. upon Logan & Bryan. Plaintiff accepted the draft and paid Busby the sum of $145 representing the difference between the agreed purchase price of the property and the face of the draft. Before the draft became legally presentable for payment defendant Busby stopped payment and claimed the property purchased did not meet representations. She thereafter obtained possession of the draft from plaintiff on the promise that she would have it paid and accompanied plaintiff to the office of her co-defendant, where she presented the draft with instructions to disregard her former protest and to pay the money to her. Plaintiffs made no objection of these instructions, but did inquire if the money could be paid to him and was informed: “Yes, if Mrs. Busby says to.” Later in the same day Mrs. Busby returned alone and received payment for the full amount of the draft. Plaintiff’s testimony differed in some respects from what has been stated, but there is ample evidence in the record to sustain the findings of the trial court and it would serve no purpose to repeat that testimony here.

[734]

The case is controlled by the general principle that where a part of a consideration for one or more objects is void the whole contract is void. (Civ. Code, sec. 1608.) The trial court found that the indorsement by Busby of the draft was in consideration of and for the purpose of enabling her to conduct a house of prostitution, which is declared an unlawful act. (Pen. Code, sec. 316.) This assignment, or indorsement, was, therefore, void, and was unenforceable in the hands of the appellant as he took it with full knowledge of the unlawful consideration. “A void contract, a contract against public policy or against the mandate of the statute, may not be made the foundation of any action, either in law or in equity.