Holt v. Green , 1873 Pa. LEXIS 65 ( 1873 )

The opinion of the court was delivered, March 17th 1873, by

Mercur,, J.

The plaintiff brought this suit to recover commissions for the sale of eei'tain machinery sold by him for defendant. It appeared upon the trial of the cause, that the plaintiff was carrying on the business of a commercial broker, and as such broker rendered the services for which the commissions were claimed. He also testified that he had not taken out a license nor paid a special tax, under the Act of Congress. Upon this the learned judge nonsuited the plaintiff and judgment was entered thereon. This is assigned for error.

The question thus presented is, did the plaintiff’s omission to pay the tax and obtain the license as a commercial broker, bar his recovery of commissions for services rendered as such broker.

The Act of Congress of June 30th 1864, sect. 71, provides, that no person * * * shall be engaged in prosecuting or carrying on any trade, business or profession hereafter mentioned and described until he * * shall have obtained a license therefor, in the manner, hereinafter provided. Section 73 provides, that any person carrying on the business without a license, shall be liable for each offence to a certain fine and imprisonment therein specified.

Sect. 79 provides that commercial brokers shall pay twenty dollars for each license. Any person whose business it is as a broker to negotiate sales or purchases of goods, wares, products or merchandise shall be regarded a commercial broker under this act.

An action founded upon a violation of the laws of the United States or of this state, cannot be maintained in the courts of this state: Maybin v. Coulon, 4 Dall. 298; s. c. 4 Yeates 24.

It is not necessary that the statute should expressly declare the contract to be void. An action founded upon a transaction prohibited by a statute, cannot be maintained, although a penalty be imposed for violating the law: Seidenbender et al. v. Charles’s Admrs., 4 S. & R. 159. Hence where a contract is made about a contract .or thing which is prohibited and made unlawful by statute, it is void, though the statute itself does not declare it shall be so, but only inflicts a penalty on the offender: Columbia Bridge Co. v. Halderman, 7 W. & S. 233. Nor is there any distinction in this state, whether the contract is malum prohibitum or malum in se: Id. 235.

The test whether a demand connected with an illegal transaction is capable of being enforced by law, is whether the plaintiff requires the aid of the illegal transaction to establish his case: Swan v. Scot, 11 S. & R. 164; Thomas v. Brady, 10 Barr 170; Scott v. Duffy, 2 Harris 20. If a plaintiff cannot open his case without showing that he has broken the law, a court will not assist him; Thomas v. Brady, supra. It has been well said that the objection may often sound very ill in the mouth of a defendant, but it is not for his sake the objection is allowed, it is founded on general principles of policy which he shall have the advantage of, contrary to the real justice between the parties. That principle of public policy is that no court will lend its aid to a party who grounds his action upon an immoral or upon an illegal act: Mitchell v. Smith, 1 Binn. 118; Seidenbender v. Charles’s Admrs., supra. The principle to be extracted from all the cases is, that the law will not lend its support to a claim founded on its own violation: Coppell v. Hall, 7 Wallace 558.

Apply these principles to this case. The bill of particulars served on the defendant avers, “ the plaintiff’s demand is founded on his claim to commissions as a broker or salesman on commission, for the sale of certain cards and other spinning and their machinery of a cotton or woollen mill, put in his hands for sale by the defendant, on or about May 1866.” Upon the trial he testified that his business was buying and selling machinery for other parties. The moment he opened his case, he showed that he was engaged in a business directly contrary to a clear and express Act of Congress. That for so doing, he was liable to a fine and imprisonment. The intent with which he did it, cannot be inquired into in this action. His right to commissions as shown rested upon his illegal acts. His right to recover in law, must depend upon his legal right to perform the services. The facts to which he testified, showed he had no such right.

Without the aid of his illegal transactions, he could not, and did not, show any services performed. His case as he exhibits it is based upon a clear violation of the statute. He grounds his action upon that violation. Thus resting his case, he cannot successfully invoke the aid' of a court.

We are aware there are some English authorities, as well as decisions in some of our sister states', that make a distinction in cases of contracts predicated of a violation of the revenue laws, and especially that class of them which does not expressly declare the contract to be void. The case of Aiken v. Blaisdell, 41 Vermont 655, is a strong case, going to sustain a contract of sale contrary to law. We prefer, however, to stand by our own decisions. The case of Maybin v. Coulon, supra, was based upon a violation of the revenue laws of the United States, and the unbroken current of authorities in this state, is to hold a contract void which is grounded upon a clear violation of a statute, although it may not be expressly so declared by its terms.

Judgment affirmed.

Sharswood and Williams, JJ., dissented.