Schmidt v. Barker

Ids:dey, J. The plaintiff claims from the defendant, as the owner of the Bank of Commerce, in New Orleans, the sum of four hundred dollars, being the balance which he avers to be due to him, on moneys deposited by him in said bank, between the 17th day of January and the 1st day of April, 1862. He complains that this balance is due and payable to him in legal tender notes of the United States, but that the said defendant has illegally and wrongfully, without his consent, caused the plaintiff’s bank book to be balanced, as a balance of account in Confederate notes, which the plaintiff himself terms “the treasonable issue of rebels in arms against the United States. ” All these allegations arc traversed by the defendant, who, however,admits that the said balance is correct as to amount, but sets up, in his’ defence, a special contract, by which he avers that deposits were received in his bank, at the period stated, only on the condition that the amount was to be drawn for in Confederate currency. And he further specially avers, that the balance of account was struck in the manner alleged by the plaintiff, with his full knowledge, and at his special request. [264] The only question at issue, thén, between the parties, is the mode in which the admitted balance is to be drawn out oí the bant; in legal tender notes or in Confederate notes. In the absence of any special agreement, or understanding, between a banter and a depositor, when the deposit is an irregular one ; when an account is tept; where moneys are deposited in bant, to be drawn out, not in the indentical funds deposited; where moneys deposited are mingled with the cash assets of the bant, and used indifferently with his own; the relations between a bant and its depositors are well and definitely fixed by our own law and jurisprudence, and by that of other countries in which business is transacted with such institutions. Such deposits are not real deposits, but are loans for use to the banter, The money so deposited transfers the property to the loanee; and the relation between a bant and its customers, in regard to irregular deposits so made, is simply one of debtor and creditor. See Arts. L. C. 2904, 2883, 2934, 2884. See the case of Matthews, Finley & Co. v. Their Creditors, 10 An. 343; and that of Sims v. Bean, 10 An. 346; Grant on Banking, p. 1; Marine Bank v. Fulton Bank, Wallace’s Report, 2 vol. p. 252. But the defendant relies on his contract with the plaintiff; and, if the agreement is a legal one, he might well invote Art. 1940 C. C.; which says that, “Legal agreements, haying the effect of law uiDon the parties, none but the parties can abrogate or modify them, and it is incumbent on courts to give legal effect to all such contracts, according to the true intent of all the parties.” See sec. 2 of the same Article. What was the agreement between these parties ? It is that produced by the plaintiff himself; and it precedes in the bank book the statement of the account. It is as follows: “Bank of Commerce, New Orleans, January 17, 1862. Deposits in this bank are received only on condition that the amount is to be drawn in Confederate ourrencyand the currency is what the plaintiff himself calls the treasonable issue of rebels in arms against the United States. This court has often held that it will not lend its aid to settle disputes relative to contracts reprobated by law. It will notice their illegality ex •officio, and allow it without any plea at any stage of the proceedings. Parties cannot be heard who ask relief from a violation of law. The law leaves them where their conduct has placed them, and in pari causa 'melior esi conditio possedeniis. Davis v. Holbrook, 1 An. 178; State v. Lazarie et al., 12 An. 166; Gravier’s Curator v. Canaby’s Executor, 17 La. 132. Article 2026, Louisiana Code, prescribes that “ every condition of a thing impossible, or contra bonos mores (repugnant to moral conduct), or prohibited by law, is null and void, and renders void the agreement which depends on it;” and Pothier (art. 1, chap. 3, part 3) defines the conditional obligation as that “qui est suspendue par la condition sous laquelle elle a été contractée, qui n’est pas accomplie.” And in what light' can this court, constituted as it is, and recognizing, as supreme and paramount to all other laws, the constitution and statutes of the United States, view a condition, on which a deposit is received, and which condition, voluntarily acceded to by the depositor, provides for and contemplates the aiding of the circulation of the treasonable issue of [265] rebels in arms against the United States; of an issue put in circulation for tlie express purpose of facilitating and carrying on the rebellion ; and ■which, issue, on the yery face of it, anticipates and purposes a disruption and dismemberment of the general government: as the notes so issued were only to be payable “six months after the ratification of peace between the Confederate States and the United States.” Such a condition in a contract is, in the words of the law, “ a nullity, and renders void the agreement which depends on it.” The plaintiff was a party to this illicit contract, and his right to stand in judgment depends upon the nature of his connection with the obnoxious condition, and upon the contingency as to whether its illegality lies properly at his door. Many of the French commentators draw a clear destination between cases wherein both parties to the contract are compromitted illicitly, and where one alone is guilty of infringing the law. Gilbert in his Code annoté, vol. 1, id. 503, in his notes to Article* 1133 C. N., says: “Les auteurs distinguent sur ce point entre le cas oil la convention est illicite seulement du coté d’une des parties, et celui ou elle est illicite des deux cdtés. Dans le premier cas, celui qui n’a ríen promis d’illicite est fondé a répéter ce qu’il a payé; dans le second, ni l’une ni l’autre des parties ne sont admises á exereer des répétitions l’une contre l’autre.” V. Pothier, No. 43 etsuiv.; Toullier, t. 6, No. 126; Duranton, t. 2, p. 687; Delomcourt, t. 2, p. 687, edit, de 1819. Cette distinction est prise de Paul et d’Ulpieu, dans les’lois 3 et 4, |2, de Condict áb iarp causa. It is hardly necessary to add, as was said in the ease of Gravier’s Curator v. Carraby’s Executor, 17 La. p. 128, that a fortiori the law will not lend its aid to enforce the performance of such contracts in the first instance. Duranton, with his usual aptness at illustration, demonstrates such a ease as would save one of the contracting parties from the effect of an illicit agreement. It would be one in which his participation therein was caused by the force of circumstances that he could not resist, without entailing on him grievous injury. That author says: “ Quelquefois cepen-dant, la cause de l’obligation de l’une des parties est illicite, sans que l’objet de l’obligation de l’autre le soit: tel est le cas oú vous vous obligez a me restituer un dépot que mon p'ere vous a confié, sans en avoir retiré une reconnaissance, et que vous exigiez une promesse de ma part de vous payer pour cela une certaine somme. “L’objet de cette obligation, la restitution du depot, est tres licite, mais la cause de mon obligation de vous payer la somme est illicite, non pas sans doute par rapport a moi, mais par rapport a vous qui avez exige une promesse pour faire ce que l’équité et le droit vous oblígeaient de faire sans aucune rétribittion. ” Duranton, Art. 366, liv. 3, tit. 3. In the example suggested by this author, he who binds himself unwillingly and under constraint is not deemed, in the eye of the law, a participant in an illicit covenant. But was this the case with the plaintiff in this suit? Olearly not; but the very reverse of it. His acquiescence in a contract that violated the law, and tended to endanger the public safety, was entirely voluntary, of Ms own free will, and with his eyes open, [266] His participation in the illegal contract was immoral, being, as it was, in violation of law. See the case of Davis v. Holbrook, 1 An. 175. What was due to plaintiff by his contract with the defendant? Foui-hundred dollars in Confederate money. If the shadow of a legal cause of action were disclosed in this case by the plaintiff, it is so coupled with the illicit condition as to be inseparable from it. The whole contract is an absolute nullity; and quod nullum esl confir-man nequit, quod nullum esl, nullum produait ejfelcum. “ Nemo audilur propriam turpiludinen allegans. ” The doctrine taught by Chancellor Kent, in the case of Griswold v. Waddington, in the Court of Errors, New York, meets our fullest approbation. He says: “If from the plaintiff’s own stating, the cause of action appears to arise from a transgression of a positive law of the country, the court will not lend their aid.” It would be difficult to state any principle of law more plainly founded on common sense and true policy, than that which declares that a plaintiff must not appear, from his own showing, to have infringed the law of the land; and, if ho does, he cannot avail himself of the law to enforce a contract made in opposition to lavr. The plaintiff must recover on his own merits; and if he has none, or if he disclose a case founded upon illegal dealing, and founded on an intercourse prohibited by law, he oughji not to be heard, whatever the demerits of the defendant may be. “There is,” says the Chancellor, “to my mind, something monstrous in the proposition ¿hat a court of law ought to carry into effect a contract founded upon a breach of law. It is encouraging disobedience and giving-disloyalty its unhallowed fruits. There is no such mischievous doctrine to be found in the books.” The judgment of the lower court, which was in favor of the plaintiff, must be reversed. It is therefore ordered, adjudged and decreed, that the action of the plaintiff be dismissed, and that plaintiff pay the costs in both courts.