Mexican International Banking Co. v. Lichtenstein

SMITH, J.: The plaintiff is a corporation engaged in the lottery busi [342] ness tinder the name oí the Juarez Lottery, with headquarters in Mexico. It delivered lottery tickets to defendant in San Francisco, to be sold. The defendant accounted to it for something over $25,000 of the proceeds of the sales of such lottery tickets, and paid over that amount, but retained and failed to pay over $1,682.75. The plaintiff sues to recover this balance for money had and received to plaintiff’s use. The defendant, in his answer, claims the tickets were valueless, and that he is not liable. The case was tried by a jury, and after hearing plaintiff’s evidence the court instructed the jury to bring in a verdict for the defendant. Motion for a new trial was made by plaintiff, and granted. From the order granting a new trial the defendant prosecutes this appeal. The evidence of plaintiff proved that it furnished lottery tickets to the defendant, and that the defendant sold them for the plaintiff, and collected $1,682.75 which he refused to pay over to the plaintiff. The only question raised by the appeal is, can the plaintiff recover of the defendant the money collected by him from the sale of the lottery tickets which he received from plaintiff, and sold for it ? The transaction took place in San Francisco. The laws of California were introduced in evidence, and, among other things, provide (Pen. Code, § 321): “Every person who sells, gives, or in any manner whatever furnishes or transfers to or for any other person any ticket, chance, share or interest, or any paper, certificate or instrument purporting or understood to be or to represent any ticket, chance, share or interest in or depending upon the event of any lottery, is guilty of a misdemeanor.” It is not denied that the plaintiff and defendant together set about to deliberately violate this statute, and deliberately intended and contrived together to commit, and did commit, the crime inhibited by it. The contention on the part of the respondent is that, [343] the defendant being an agent of plaintiff, and having received these lottery tickets as its agent, and having sold them, he cannot question the right of his principal to an accounting by reason of any defect in their title, or for the reason that in fact no value was parted with when the tickets were sold. The proposition, as stated by respondent, in his brief, is as follows: “ An agent who has received money from or in behalf of his principal cannot defeat an action brought by the principal to recover it upon the ground that the contract under which the money was paid,-or the transaction from which it was realized, or the purpose to which it was devoted, was illegal.” Many authorities are cited which sustain this proposition. See Planters’ Bank of Tennessee v. Union Bank of Louisiana, 16 Wall. 483; McBlair v. Gibbes, 17 How. 232; Brooks v. Martin, 2 Wall. 70; Mechem, Ag. § 526; Story, Ag. p. 620; Armstrong v. Bank, 133 U. S. 433-470, 10 Sup. Ct. 450. Many other cases are cited, and may be found, which, in a general way, sustain the proposition contended for by the respondent. The real vice of the contention on the part of the respondent — and, it would appear, the real error committed by the trial court in granting the new trial — was in holding that the defendant was an agent of the plaintiff at all. Both these parties, plaintiff and defendant, were engaged in the commission of crime, each actively participating in it. Under our statute, both are principals in that act. No contract between themselves could change their relations, so far as the law is concerned. Bach was actively aiding and assisting in the commission of a crime, and now, having committed the crime, and procured the fruits of the criminal enterprise, they come into the civil courts, and ask the agency of the law in a division and application of the proceeds of their criminal adventure. The question is, can this be permitted? It is not simply [344] a case where the plaintiff, in good conscience, ought not to insist upon the bargain made through an agent with.a 'third person, nor is it a transaction voidable on account of its being against public policy, but the transaction is criminal in itself, — criminal in California, where it1 was effectuated, and criminal in Utah, where the civil courts are asked to divide the proceeds of the crime. This, it seems to us, is the distinction between the cases cited by the respondent and cases which hold to the doctrine that the civil court, where it finds both parties in equal fault, leaves them in the same condition in which it finds them. Two cases are cited by appellant which appear to be directly in point in this case: Lanahan v. Pattison, 1 Flip. 410, Fed. Cas. No. 8,036, and Udall v. Metcalf, 5 N. H. 396. Both these cases appear to be exactly alike. The-one at bar, and the matter in controversy in •each, was money received by a so-called agent for the purchase price of lottery tickets. It was held that the plaintiff, the lottery company, in neither case could recover.- The employment of an agent to sell tickets in a .lottery is void. See Mechem, Ag. § 38. Therefore, the relation never in fact-exists. As we have already stated, both parties are principals. They are both in equal fault; and it would appear to be a monstrous doctrine if participants in crime may invoke the power of the civil courts to determine which of them is entitled to a particular share of the spoils resulting from their criminal adventure. If they may do this in a lottery case, there certainly can be no reason why it may not be done in a •case where one steals, and the other receives and sells the stolen goods, there being an agreement to that effect in advance. If an action were filed for an accounting by the thief against the person with whom he had an-agreement to receive and sell stolen goods, and who in fact so received and sold them, it is hardly possible that any civil court [345] would hesitate to dismiss such action upon the bare presentation of it. In fact, such cases have arisen, and the solicitors have been punished for contempt for bringing such matters to the attention of the civil courts, and the parties hanged. See Everet v. Williams, 2 Poth. Obl. (by Evans), 3; Spalding v. Preston, 21 Vt. 9. We fail to see any reason why this case does not belong to exactly the same class. This money no more belongs to-the plaintiff or defendant than if it had been stolen by one or the other of them, or both. They have simply obtained it by means of a criminal enterprise, and the degree of crime in no wise changes the relation of the parties to each other. In Sykes v. Beadon, 11 Ch. Div. 195, Lord Eldon said he would not sit to take an account between two robbers on Haunslow heath. No more will we sit to take an account between two thieves from San Francisco, and that is what we are asked to do here. We are cleárly of the opinion that it is a matter which ought never to have been brought to the attention of any civil court. The -order of the court below granting a new trial is reversed, and the cause remanded to the court below to dismiss the action. Minee and Bartoh, JJ., concur in the result reached.