Elder v. Corr

Opinion by Orlady, J., The statement in this action of trespass avers that the plaintiff was lawfully possessed as holder of a certain warehouse certificate, entitling him to ten barrels of whisky of the value of f800, and that he, desiring to sell the same, employed a broker, who sent the warehouse certificate by post for the purpose of consummating a sale of the property with the request that the purchaser, the defendant, have the ten barrels of whisky regauged and forward to the broker a copy of the re-gauge ; that the defendant took the whisky into his own possession and refused to give the broker or the plaintiff a copy of the regauge, or to pay in cash for the whisky. That demand was made for the regauge, the certificate, the whisky and the cash payment'for the whisky, and that the defendant refused to comply with the demand and converted and disposed of the certificate and whisky to his own use. The plaintiff recovered a verdict and the two questions urged on this appeal are, [232] First, Was the action properly brought? Second, Will the court enforce the contract which is in violation of public policy? I t was admitted on the trial that none of the persons connected with the sale of the whisky were licensed vendors of liquor, nor had any of them paid a government tax as a wholesale dealer. Appellant urges that the action should have been in assumpsit, because the cause of action arose out of a contract. The contract'for the sale of the ten barrels of whisky was preliminary to the cause of action on which the plaintiff sues, which is the tortious conversion of the property which defendant fraudulently induced the plaintiff through the broker to deliver to him, upon the express condition that the whisky was to be regauged and paid for in cash, and which he subsequently converted to his own use. The action was properly brought in trespass, the statement is sufficient and the evidence warranted the verdict. After receiving the property the defendant refused to pay for or to return it; then denied the plaintiff’s title to it; and finally threatened to inform the government that the plaintiff was violating the revenue laws if any steps were taken to recover the goods. From the evidence it is apparent that the plaintiff was fraudulently deceived into parting with his property, and the defendants withholding it after a demand was made for it, was also tortious: Clowes v. Hughes Bros., 3 Pa. Superior Ct. 561; Carey v. Bright, 58 Pa. 71. As to the second proposition, that the court will not enforce the contract, because it is against public policy, we do not agree with the appellant in his application of the principle. The decisions are uniform from Seidenbender v. Charles, 4 S. & R. 151, to Manufacturing Co. v. Reilly, 187 Pa. 526, that the courts will not aid a party in an action grounded on an immoral or illegal act. But we find no case which holds that a defendant who fraudulently receives property is protected by the law, and relieved from any liability to return or pay for it, or that the plaintiff is limited to the simple action of assumpsit in recovering its value. A defense of this nature was urged in Commonwealth v. Shober, 3 Pa. Superior Ct. 554, and it was held by this court to be insufficient. See also Blakeslee Mfg. Co. v. Hilton, 5 Pa. Superior Ct. 184. We do not think the facts in this case bring it within the [233] prohibition of the state or federal statutes: Rahter v. Bank, 92 Pa. 393. The property was transferred subject to the tax due to the government and even if the buyer and seller were liable for certain prescribed penalties, it would be manifestly unjust to permit a purchaser of the kind described in this testimony to be discharged of all liability for payment for so inequitable a reason. No wrong was done to the federal or state government in allowing such a transfer, and we cannot see how it affects public policy. To accept the certificate and the quantity of whisky was the only way the plaintiff had' of securing his money. It was a single transaction, and to relieve the defendant would be putting a premium on what appears at least to be an attempt to receive the fruits of his own fraud under guise of a principle of public policy. The assignments of error are overruled and the judgment is affirmed.