Edsil Trading Corp. v. John Minder & Sons, Inc. , 297 N.Y. 313 ( 1948 )

In the Marrow cases (296 N.Y. 760, 296 N.Y. 762, 296 N.Y. 764) we held that the OPA statute (Emergency Price Control Act of 1942, § 4 [U.S. Code, tit. 50, § 904]) meant what it said: that any sale of a covered commodity at over-ceiling price was "unlawful", and that a "trade purchaser" (not an ultimate consumer) who paid more than the ceiling price could not recover back the excess he had unlawfully paid. It is the fact of overpayment, regardless of agreement or intent or lack of intent, which makes such a vendee a participant in the unlawful transaction, and puts him, like his vendor, outside the protection of the courts (see International Spangles Corp. v.Marrow Mfg. Corp., 294 N.Y. 295, 299, which cites Carmine v.Murphy, 285 N.Y. 413, 416, which in turn quotes, as to an illegal sale, "the general rule of law that no right of action can spring out of an illegal contract"). Lack of knowledge that the prices were over ceiling, or mistake or confusion in that regard, cannot help this plaintiff-purchaser any more than it absolved purchaser Marrow in the three cases first above cited. That plea might serve such a purchaser in a criminal prosecution where willfulness is expressly made an ingredient of the crime (United States v. Bruno, 329 U.S. 207) but our Marrow cases (supra) are plain holdings that ignorance or innocence as to the price schedules will not lift the iron curtain which the statute has set between the violating vendor, and the return of part of his money. If willfulness or no, were the test of plaintiff's rights, plaintiff Marrow's pleadings would not have been held insufficient, since Marrow specifically alleged that it had been deceived by fraudulent misrepresentations into believing that the prices it paid were under ceiling.

The excuse here offered by plaintiff is a mere variant of the one rejected by us in the Marrow cases (supra).

The judgment should be affirmed, with costs.

LOUGHRAN, Ch. J., CONWAY, THACHER, FULD and DYE, JJ., concur with LEWIS, J.; DESMOND, J., dissents in opinion.

Judgments reversed, etc.