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CHARLES S. RIEMAN, Appellant, vs. EDWARD W. MORRISON, Appellee.

Opinion filed June 16, 1914—Rehearing denied October 7, 1914.

1. CONTRACTS—what contract is not, on its face, illegal. A contract whereby one party agrees to pay compensation to another for the latter's services in procuring the return of money and property belonging to the first party which is being wrongfully withheld from him by other persons is not, on its face, illegal nor against public policy.

2. SAME-one whose property is stolen is not limited to criminal prosecution. One whose property is stolen may sue for the property and secure legal services and other aid for its recovery, and he has a right to negotiate for its return if he does nothing having the object or effect of concealing crime or having a tendency to hinder or prevent a criminal prosecution.

3. SAME—when contract for recovery of property is valid. If the sole object of a contract is for the recovery of property, even by a compromise of a civil liability, it is valid.

4. SAME what constitutes the compounding of a criminal offense. The offense of compounding a criminal offense consists of perverting public justice in some way by making a bargain to allow the criminal to escape conviction or showing some favor to him for that purpose.

5. SAME what is essential to a plea intended to allege concealment of a crime. A plea intended to present the defense that the contract sued upon was made for the purpose of concealing a crime, must, in the absence of any pending prosecution, allege that a crime has been committed, and a plea which fails to allege either the commission of the crime or the pending prosecution is bad.

6. SAME what is required to make contract champertous. To make a contract champertous there must be an agreement that the costs and expenses of the litigation, or some part of them, are to be paid by one who is not a party to the suit.

7. PLEADING—a defective replication amounts to the same thing as a demurrer. A defective replication amounts to the same thing as a demurrer to the plea the replication professes to answer, and if the facts alleged in the plea constitute a defense to the cause of action alleged in the declaration, a judgment in bar against the plaintiff is proper.

8. SAME when court should not enter judgment in bar against plaintiff. If a plea is defective in substance and does not allege

facts constituting a defense to the cause of action it is error to give judgment in bar against the plaintiff, even though he has waived all formal defects in the plea by not demurring and by not asking to have the demurrer to his defective replication carried back to the plea.

9. SAME a demurrer tests sufficiency of all preceding pleadings. A demurrer tests the sufficiency of all pleadings which precede the demurrer, and the court should not give judgment in favor of the party who is first to commit an error.

APPEAL from the Branch "B" Appellate Court for the First District;-heard in that court on writ of error to the Municipal Court of Chicago; the Hon. JAMES C. MARTIN, Judge, presiding.

FYFFE & RYNER, and DANIEL W. SCANLAN, for appellant.

JAMES R. WARD, for appellee.

Mr. CHIEF JUSTICE CartwrigHT delivered the opinion of the court:

The Appellate Court for the First District granted a certificate of importance and an appeal from its judgment affirming a judgment of the municipal court of Chicago in favor of Edward W. Morrison, appellee, in a suit brought against him by Charles S. Rieman, the appellant. The suit was upon the following written contract set out in special pleas and stated in the complainant's affidavit of claim as constituting the cause of action:

"This agreement, made and entered into this 12th day of June, 1909, by and between Edward W. Morrison and C. S. Rieman, both of Chicago, Illinois,

"Witnesseth-That whereas said Morrison believes, from information furnished him by said Rieman, that certain money or moneys, real or personal property, rightfully belonging to him under the law have been wrongfully withheld from him by others; and whereas said Morrison believes said Rieman is in position to secure the return to him of said money or moneys, property, real or personal, wrongfully withheld from said Morrison by others:

"Now, therefore, in consideration of the premises and of the services rendered and to be rendered by said Rieman to said Morrison in his efforts to recover the money or moneys, real or personal property, said Morrison hereby agrees to and with said Rieman that said Rieman shall have and retain as his compensation for his efforts, (or for information furnished by him on which any recovery may be made, as aforesaid, by said Morrison,) and for his services in recovering or assisting to recover money or moneys or real or personal property for said Morrison, as aforesaid, one-half (%) of the cash so recovered through the efforts, services or information furnished by said Rieman, also cash to the amount of one-half (%) of the value of whatever property, real or personal, may be recovered for said Morrison, as aforesaid; said valuation to be determined by three appraisers, one to be chosen by each of the parties hereto and the third by the two so selected, whose findings shall be final as a basis for discharging the provisions of this

contract.

"Said Morrison hereby gives and grants to said Rieman full authority to represent him in securing the return of the money or moneys, real or personal property, and to receive same in said Morrison's name and behalf, and authorizes said Rieman to secure legal services to assist, if necessary, in the recoveries to be attempted, as aforesaid, or to invoke the aid of the authorities, if necessary, to that end. Said Morrison further authorizes said Rieman to employ attorneys and fully represent said Morrison in any litigation that may be necessary to make the recoveries, as aforesaid, and to represent him in all other matters in the same connection. "In witness whereof the parties hereto have hereunto set their hands and seals the day and year first above written.

EDWARD W. MORRISON,
C. S. RIEMAN."

There were two common counts in the original declaration, and two special counts, in which the plaintiff averred that he entered the employment of the defendant under the contract and performed services and furnished information to enable the defendant to recover his lost money and property; that the defendant actually recovered said money or property, or the value thereof, through such information; that the plaintiff continued in the employ of the defendant until June 23, 1909, when the defendant proceeded to recover his money or property, or the full value thereof, without permitting the plaintiff to further assist him, and that

the plaintiff was always ready and willing, and repeatedly offered, to perform all the duties required of him according to the terms of the contract. For some time after the filing of the original declaration the attorneys were actively engaged in filing other pleadings. The defendant filed a plea of the general issue and three special pleas, whereupon the plaintiff filed a general demurrer to two of the pleas and filed two additional counts declaring on the contract. A demurrer to the special counts was sustained, and by leave of the court the plaintiff filed seven amended additional counts declaring specially upon the written agreement. The defendant then filed eight pleas, to which the plaintiff filed eleven replications, taking issue in some replications and in others offering to verify, and afterward, on leave given, filed three additional replications and later amended several replications. The defendant filed fourteen demurrers to the replications, the fourteenth demurrer being in the nature of a special demurrer to all the replications, amended replications and additional replications, on the grounds that the replications were indefinite and confusing, not sufficiently specific and certain, not sufficient in law and tendered immaterial issues. The court sustained the fourteenth demurrer and made a finding that the contract sued upon was void. The plaintiff stood by his replications, amended replications and additional replications, and the court rendered judgment against him in bar of the action and for costs.

The record contains a bill of exceptions reciting the rulings of the court, which were already matters of record, and as the bill of exceptions was neither required nor proper no attention will be given to it.

It will not be necessary to state in detail the contents of the volume of pleadings, which, in the main, may be classed as either useless or worthless. The trial court made a finding that the contract sued upon was void, and the Appellate Court considered that such allegations of the eighth plea as were not traversed, and therefore were admitted, constituted

a good defense to the action. In our opinion the Appellate Court took the proper course in giving attention only to the eighth plea and the replications thereto, since they presented everything material to the controversy. There was no occasion for seven additional counts, the legal effect of which is substantially the same, and the numerous pleas and replications served only to encumber the record instead of bringing the contention of the parties to a single issue, as contemplated by the law of pleading. We think that a consideration of the contract, the eighth plea and the replications to that plea will be sufficient for a determination whether the judgment of the Appellate Court ought to be affirmed or reversed.

The contract, on its face, is not illegal or of such a nature that a court should refuse to enforce it because it contravenes some statute or rule of public policy. It contains no statement that property of the defendant had been stolen, and if such were the fact there is no reason in law why the defendant could not take such measures as he saw fit to recover his property, so long as there was no interference with the enforcement of the criminal laws. Section 21 of division 2 of the Criminal Code expressly preserves the civil remedy, and provides that nothing contained in the act shall be so construed as to prevent the party injured having and maintaining a civil action for the damages and losses that he may have sustained in consequence of the commission of any criminal offense. The defendant might sue for his property and secure legal services or other aid for its recovery and begin and prosecute any litigation necessary for the purpose, and as he could sue for the return of his property he could negotiate for its return if he did nothing having the object or effect of concealing crime or having a tendency to hinder or prevent a criminal prosecution. There is nothing in the contract by which the defendant, in seeking to regain his property, agreed to do anything except to pay the plaintiff for his services. There is nothing apparent in the

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