Dieckmann v. Robyn

NORTONI, J. (after stating the facts). — The court very properly sustained the demurrer. This petition alleges that plaintiff, a stockholder in the corporation then being -organized, agreed to sell his vote for a valuable consideration, payable to himself, and that he afterwards cast the vote at a meeting of the stockholders in accordance with such contract. Because of his performance of this agreement, he seeks to recover the consideration which it was agreed he should have for his vote. This alone not only ought to be enough, but is sufficient, to defeat his right of recovery as a matter of law. Such a contract is void as against public policy, and it operates as a constructive fraud upon the corporation then being organized and upon other stockholders as well. It vouchsafes a valuable consideration to plaintiff, a stock 71 holder of the corporation then in the process of formation, which may induce him to violate whatever trust relation he occupies, to the end of furthering his own private interests as against' those of the company and other stockholders. That such a contract is void on the ground of public policy alone is not to be questioned. [See Guernsey v. Cook, 120 Mass. 501; Woodruff v. Wentworth, 133 Mass. 309.] It is true that the objection the contract is illegal and void as against public policy comes with poor grace from a defendant who is a party thereto, but be this as it may, such objection is allowed to prevail, even when put forward by one who participates in the wrong, not, however, as a protection to him, but for the sake of the public good and because the law will not lend its aid to enforce such an illegal contract. In such circumstances, the law leaves the parties where they place themselves. [Attaway v. Third National Bank, 93 Mo. 485, 5 S. W. 16.] Of course, what has been said as to the defendant proceeds on the hypothesis that his demurrer confesses the averments of the petition, for such is the theory of the law. But though such be the rule, we are wholly unadvised as to the truth of the facts charged and in no respect do we suggest defendant a participant in the wrong except as it appears confessed in theory of law by the demurrer. The judgment should be affirmed. It is so ordered. Reynolds, P. J., and Caulfield, J., concur.