Bosshard v. County of Steele

Wilson, C. J. Action for money paid for the use of defendant, which appeals from the judgment. In January, 1924, plaintiff was appointed treasurer of Steele county to fill a vacancy caused by death. The county board, as a condition of the appointment, agreed that the county would pay the premium on the first $50,000 of plaintiff’s official bond and exacted a promise from him to “take care of the premium on the balance.” That agreement was performed during the years 1924 to 1926, inclusive. The purpose of this suit is to recover the premiums paid by plaintiff, his position being that it was the statutory duty of the county to pay them. An agreement will be enforced, even if it is incidentally or indirectly connected with an illegal transaction, if plaintiff will not require the aid of the illegal transaction to make out his case. 13 *284 C. J. 502, § 445; 6 R. C. L. 821, § 217; Eagle Roller-Mill Co. v. Dillman, 67 Minn. 232 , 69 N. W. 910 ; Disbrow v. Creamery Pkg. Mfg. Co. 110 Minn. 237 , 125 N. W. 115 ; Bodenhofer v. Hogan, 142 Iowa, 321 , 120 N. W. 659 , 134 A. S. R. 418, 19 Ann. Cas. 1073; Pitsch v. Continental & Com. Nat. Bank, 305 Ill. 265 , 137 N. E. 198 , 25 A. L. R. 164; Sewell v. Norris, 128 Ga. 824 , 58 S. E. 637 , 13 L.R.A. (N.S.) 1118; Wald v. Wheelon, 27 N. D. 624 , 147 N. W. 402 ; Kennedy v. Lonabaugh, 19 Wyo. 352 , 117 P. 1079 , Ann. Cas. 1913E, 133. 1 Every fact pleaded in the complaint is admitted in the answer, which alleged the illegal contract as a specific defense. Plaintiff’s proofs showed that he was the county treasurer. The minutes of the county board showing the appointment made no reference to the illegal agreement, which seems to have been a separate or side agreement as a condition to his appointment. The records show an unconditional legal appointment. He paid $1,350 as premium on his bond. All but a small portion of the amount should have been paid by the county. G. S. 1923, § 840. He showed facts from which liability was established. He did this independently of the illegal contract. He did not call to his assistance the illegal contract which was brought into the case and used by defendant as a shield. The plaintiff does not seek to enforce the illegal contract. Upon the facts admitted and established, without reference to the illegal agreement, and upon the statute he has established a cause of action and is entitled to recover. In the absence of the illegal side agreement his claim could not be questioned. He has neither required nor used the illegal agreement. His cause of action is complete without it. Perhaps the county was induced to make a valid contract by the illegal agreement, but if plaintiff cannot recover there is not much left of the general rule which has been quite uniformly recognized by the authorities. Affirmed.