Lemon v. Grosskopf

Cole, J. The counsel on both sides substantially concede that the rule is well settled, that courts will not enforce illegal contracts; but they differ as to the application of that rule to the facts of this case. So far as the nineteen tickets, which the defendant retained for himself, are concerned, it is admitted by the plaintiff’s counsel that no recovery can be had. Then the question arises, "Was the plaintiff entitled to recover the money received by the defendant for tickets sold by himself ? It is insisted that he can recover that money because the illegal contract has been fully executed; the purchasers of the tickets having paid over the same to the defendant for the use of the plaintiff. It is said that when money is paid by one person, on an illegal contract, to the agent of the party entitled to receive it, such agent cannot set up the illegality as an answer to the claim of the principal; that, as between the agent and the principal, the action is not founded on the illegal contract, nor does the obligation of the agent to. pay over the money grow out of such contract, but arises from the fact that the agent has received money for the principal. This' may be true in some cases, and seems to be the ground upon which Tenant v. Elliott, 2 B. & P., 4; Farmer v. Russell, id., 296; Sharp v. Taylor, 2 Phillipps (22 Eng. Ch. R.), 801; Owen v. Davis, 1 Bailey, 315, and some other eases to which we were referred on the argument, are decided. It seems to us, however, that the doc-. [452] trine of these cases is not entirely applicable to the case before ús. The difference may not be very discernable, but still we are disposed to give it weight in our decision. Here the defendant was employed by the plaintiff to sell these lottery tickets, receive and retain the money for them until he became satisfied that the drawing of the prizes in the ’ scheme was fairly conducted, and then account to the plaintiff. It was as well a part of his agency to receive and account for the money, as to sell the tickets. And an action to recover this money goes in affirmance of the illegal contract, and to enforce the performance of this duty. The main object of the agency was to do an act criminal by our statute (section 2, chap. 169, R. S.)—to engage “ in a traffic not merely forbidden, but fraudulent and indictable.” And if the agent is dishonest in the transaction of the business — if he refuses to account for money which he' has secured for the tickets sold by him — should the court interfere and enforce a performance of his duty ? It seems to us that the court must decline-to interfere on either side, upon the maxim, ex turpi causa non oritur actio. In Hunt v. Knickerbocker, 5 Johns., 326, which was an action on a contract- made for the sale of tickets in a lottery not authorized by the legislature of New York, Mr. Justice THOMPSON, in delivering the opinion of the court, said: “No case could be found where an action has been sustained, which goes in affirmance of an illegal contract, and where the object of it is to enforce the performance of an engagement prohibited by law. Wherever an action has been sustained against a party, to prevent him from retaining the benefit derived from an unlawful act, the action proceeds in disaffirmance of the contract; and, instead 6f endeavoring to enforce it, presumes it void.” See Thalimer v. Brinkerhoff, 20 Johns., 386-397; Armstrong v. Toler, 11 Wheaton, 258. It seems to us that the obligation of the defendant [453] 'to pay over tlie money -winch he has received for the tickets sold by him, is so connected with the illegal contract as to he inseparable from it, and that a court should not lend its aid to enforce it. Murdock v Kilbourn, 6 Wis., 468. But the money which the defendant received from Kil-gore stands upon -different grounds. So far as that money was concerned, it seems to us that it stands precisely on the same ground it would, had Kilgore delivered the money to some stranger, or to an express company, to transmit it to the plaintiff. It is disconnected with the illegal transaction, and is not affected by it. It is the case suggested by the Master of the Rolls in Thomson v. Thomson, 7 Ves., Jr., 468-471, of money paid into the hands of a third per-, son for the use of the plaintiff, who may recover the same, from such third person, although the money is the proceeds of some illegal transaction. Merritt v. Millard, 5 Bosworth, 645. Therefore, so far as respects the two hundred and fifty-five dollars paid the defendant by Kilgore for the plaintiff,- the action is maintainable. The judgment of the county court must be reversed, and the cause remanded with directions to enter judgment for the plaintiff for that amount. By the Court. — Ordered accordingly. Mr. Justice Paine, having been of counsel for the plaintiff, did not sit in this case.