Goodrich v. Tenney

Watermal J.

This is a most extraordinary bill. Briefly stated, appellant comes into a court of equity, setting up and asking to have enforced a written agreement, utterly void, and which no court either of law or equity would think of enforcing. In addition to this he deliberately states that he made a mock surrender of the agreement, for the purpose of enabling one of appellees to falsely testify, if called, that there was no such contract, and that he, appellant, then falsely asserted, when interrogated by the solicitors for the defendant in that case, that he had no such contract and no interest in the litigation concerning which such agreement was. It may fairly be argued that the agreement did not necessarily contemplate the procuring of anything other than truthful testimony, and that the statement that Goodrich undertook to furnish the affidavits of the facts, means that he was to furnish affidavits of the real facts and not anything similated or of an untruthful nature. Contracts of this nature are, however, illegal, notwithstanding the fact that they may not contemplate, and that there may bo no intention to do otherwise than to ascertain and procure truthful evidence. The Supreme Court of this State, in Gillett v. Logan Co., 67 Ill. 256, in reference to a contract by one McKTeill, “ to hunt up testimony and prepare the same and present it to the proper authorities, and receive from Logan County as compensation therefor, for ten illegal votes, 8100,” etc., said that by such a contract a strong-temptation was held out to the parties employed to make use of improper means to procure untrue testimony and secure the desired result of the suit; that the nature of the agreement was such as to encourage the subornation of witnesses, and to make use of other base appliances in order to secure the necessary results which were to bring to the agent his stipulated compensation; and further that the tendency of such agreements must be to taint with corruption the atmosphere of courts and pervert the course of justice; and the contract was, in that case, held to be illegal and void, notwithstanding the evidence in the case disproved the actual use by the county of any corrupt means or any corrupt design. A similar contract was held void in Patterson v. Donner, 48 Cal. 369.

That courts will not enforce the execution of an illegal contract—that they will neither compel the parties thereto to divide the spoils of their unlawful undertaking, or to pay compensation' for services, rendered therein—is well settled. Neustadt v. Hall, 58 Ill. 172; Liness v. Hesing, 44 Ill. 113; Arter v. Byington, 44 Ill. 468; Skeels v. Phillips, 54 Ill. 309; Cummings v. Foss, 37 Ill. 523; Broom’s Legal Max. 732; Collins v. Blantin, 2 Wils. 341.

Counsel for appellant have called our attention to the case of McBlair v. Gibbs, 17 How. 335, as well as others, insisting that under the authority of these cases, the proceeds of the illegal undertaking being now in the hands of one of the parties to the unlawful agreement, such party will be required to divide the proceeds according to the original compact; that is, we understand appellants to insist that the bill in this case is not for an execution of the original agreement but merely for an awarding of a division of the spoils that have arisen therefrom. Doubtless there may be found cases—perhaps some of those cited by appellant do trench upon the rule that courts will leave the parties to an illegal transaction in the situation in which they have voluntarily placed themselves, yet we think it will be found that in all these cases an attempt has been made to discriminate between the enforcement of claims growing immediately out of the illegal contract and the maintenance of obligations resting upon independent and valid considerations. Such was the case of the assignment held valid iMcBlair v. Gibbs, supra. The court in that case said:

“ The transaction out of which the assignment to Oliver arose, was unaffected with any illegality. The consideration paid was not only legal, but meritorious.” Wilson v. Owen, 30 Mich. 474, is clearly distinguishable from the case at bar; the opinion in that case points out the distinction between Bronson Agricultural Association v. Ramsdell, 24 Mich. 441, in which the court refused, to sustain an attempt to collect money earned in an illegal enterprise, and the case then under consideration.

Tracy v. Talmage, 14 N. Y. 162, is merely to the effect that when the parties to a contract malum prohibitum only, are not in pari delicto as well &s particeps criminis, the courts, although the contract be illegal, will afford relief, when equity requires it, to the more innocent party; and the court, in respect to the two classes of cases in which relief will be afforded to the parties to an illegal contract says, page 181: “ It is essential in both classes that the contract be merely malum prohibitum. If malum in se, the courts will in no case interfere to relieve either party from any of its consequences.” Curtis v. Leavitt, 15 N. Y. 9, is so unlike the case at bar and the judgment given so different from anything alleged or sought by appellant that it can not well be considered an authority applicable to the present litigation. What is said by Selden, J., on page 285 of the voluminous discussion, occupying 250 pages, is worthy of notice, viz.: £< If both parties be in pari delicto, no relief will be granted, but they will be left remediless; their contract will not be set aside, and -any money which may have been advanced can not be recovered. 27or do we find anything in the cases cited in note 2, Sec. 403, Pomeroy’s Eq. Juris., to which counsel have also called our attention, which militates against the well recognized rule in respect to illegal contracts, that Avhere the agreement is malum in se, or the parties are in pari delicto ¡mil particeps criminis, the court will not afford them any relief. In the present case, according to the allegations of the bill, the contract was malum in se, the parties are in pa/ri delicto andparticeps criminis. Appellant alleges that he has performed and asks’ that the court compel the other party to fulfill his part.

We do not see, if appellant has any rights, what necessity there was for him to apply to a court of equity. He does not seem to be ignorant of the amount of money realized by appellees or to have any difficulty in establishing the same. He is in possession of what he declares is a true copy of the agreement he made. He insists that it is in full force, and that the only obstacle to its enforcement is the fact that he was fraudulently induced to surrender the original and executed a release of the same. Fraud vitiates all actions, and there is no reason shown why,,if appellant has a good cause of action for the money received under and in pursuance of this contract, he should not have gone into a court of law and recovered the same. Certainly the fraudulent obtaining of the original of a contract or a release of the same, is no defense in a court of law to an action based thereon.

It would seem also that in a bill of this nature some reason- ought to be given to a court of equity for appellant’s long neglect to sooner prosecute his claim. It appears from the bill that appellees received the money sought to be recovered about the 6th of December, 1888, of which reception appellant seems to have been then informed; yet he neglected to file his bill until August 20,1891. From other allegations in the bill it would appear that the assertion which appellant says he falsely made in the said litigation against said Lowy, was made more than three years prior to the filing of his bill. Whether the time at which appellant, in response to the interrogations of Lowy’s solicitors, made his false statement, had anything to do with the period at which he filed his bill, can only be conjectured. The bill is in effect simply a bold and bare attempt to induce a court of equity to enforce an illegal and void agreement, and the demurrer to it was properly sustained.

Judgment affirmed.