Bettinger v. Bridenbecker

63 Barb. 395 | N.Y. Sup. Ct. | 1865

Lead Opinion

Morgan, J.

The plaintiff’s complaint charges that prior to February, 1862, she had a just and valid claim against Daniel F. Dygert for damages, which he settled at $500; that he was to pay $50 down, and the residue to he placed in the hands of the defendant for her use and benefit. That Dygert paid her the $50, and paid to, and placed in the hands of the defendant, $450, for her use and benefit-, which sum the defendant agreed to keep and hold as her trustee, and to invest the same for her, and pay over to her annually the interest and income, and to pay her the principal sum on the 15th day of July, 1864; which he neglected and refused to do, although specially requested.

The answer of the defendant alleges that prior to February, 1862, Dygert was arrested and held to bail for the commission of a felony, viz., in aiding the procuring of an abortion of a quick child upon the person of the plaintiff; and that Dygert paid the plaintiff $50, and ptit $450 in the defendant’s hands to be paid to her, in consideration, among other things, that the criminal prosecution then commenced should be abandoned.

On the trial, the plaintiff" produced in evidence an agreement in writing, bearing date February 1, 1862, signed by the defendant,-by which he acknowledged the receipt of $450 from Dygert to be held by him upon certain trusts therein mentioned, or until • the same was revoked. This agreement promised that on the 15th day of July, 1864, the said sum of money should be paid to the said plaintiff as her own, provided that before that time no prosecution should in any manner and form be instituted against the said Daniel F. Dygert, on account of any alleged injury to the person or.character of the plaintiff, either civil or criminal, or in her own behalf, or in behalf of the people of the State of Rew York. And also provided that the. plaintiff should also execute a release of all demands.

The plaintiff also proved that she executed a release, and thereupon demanded the money of the defendant, July .15, 1864. The defendant then proved that Dygert was arrested January 2, 1862, and held to bail upon a criminal warrant charging him with the criminal offense of assisting in procuring an abortion of a quick child upon the person of the plaintiff, at Ilion, July 5,1861. The defendant then proved, by Thomas Richardson, the execution of another agreement by the defendant to Dygert, upon the same subject, written at the same time, which contained a further provision that if any action, either civil or criminal, for the causes aforesaid, should be commenced on or •before the 15th of July, 1864, either by the people or the plaintiff, then and in that case the defendant engaged to repay the money to Dygert. The plaintiff objected to the reception of this agreement in evidence, but the objection was overruled, and the plaintiff" excepted.

The plaintiff produced as a witness Jacob Wendell, who was present at the execution of the two agreements, and offered to prove by him that the money mentioned in the agreement was not in fact paid to compound a felony, but that the sum was paid in settlement of the plaintiff’s claim against the said Dygert, for her private damages, for breach of promise of marriage and seduction. This offer was overruled by the court, to which.the plaintiff excepted.

The defendant’s counsel then moved for a nonsuit, upon the ground that the agreement upon which the action was brought was illegal and void, as against public policy. Which motion was granted by the judge, and the plaintiff’s counsel excepted to the decision.

It seems to me that the case is too plain for argument; arid that nothing can be necessary to be said to show that one indispensable condition upon which the money is to be paid to the plaintiff, was the successful suppression of criminal proceedings which had already been instituted against Dygert. By the 15th day of July, 1864, it would be too" late to indict him, for the three years’ limitation would have expired, the alleged offense having been committed at. Ilion on the 5th day.of July, 1861. This was certainly a contract which tended to obstruct and interfere with the administration, of public justice, and of the laws, and it is unnecessary to cite authorities to prove that it is utterly void. Ho valid trust can be founded upon an interest derived from an illegal contract, or established in contravention of the general policy of the law. ' (Hill on Trustees, 45.) The claim that the contract had been executed cannot be supported. This suit is brought to enforce it, and for that reason the court cannot aid the plaintiff, although it would not by any means assist the defendant, if its aid should become necessary to enable him either to execute or to defeat the trust.

It is also quite apparent that the plaintiff could not be permitted to prove, in opposition to the express stipulation of the agreement, that it was not a part of the understanding that criminal proceedings should be abandoned.

In my opinion, it is too plain to require farther examination. (Porter v. Havens, 37 Barb. 343.) There was nothing in the second agreement proved that changed the character of the transaction, and the objection to the reception of that' in evidence was a matter of no consequence whatever. Indeed the action cannot be sustained upon any view of it, unless we are prepared to shut our eyes to the clearest evidence of a corrupt agreement to suppress a criminal prosecution.

The motion for a new trial should be denied.

Bacon, J., concurred.

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Dissenting Opinion

Mullin, J., (dissenting.)

I regret that I am compelled, by force of authority, to vote for reversal of this judgment. If a way can be found by which persons guilty of felony can compound it and the prosecutor receive 'the price of the illegal bargain without violating the rules of law, I very much fear that crime will be committed with an impunity which it has not heretofore been understood to enjoy, and with an audacity never before exhibited. Declaring an agreement to compound a felony illegal and void between the parties to it and yet giving it effect, when an agent, stakeholder or other trustee is interposed between them, is practically to surrender the principle, to make lawful that which the public safety and the public morals require should be rendered utterly impossible of accomplishment. What criminal, with the state’s prison or the gallows staring him in the face, will refuse to deposite with an agent of the prosecutor whatever sum the latter may demand, and he be able to pay, to secure the silence of the only person who can bring him to justice ? It is true both parties are indictable for entering into such an agreement, yet how very slight is the danger of a conviction where the only persons cognizant of the crime are the accused themselves, and who, if they are shrewd, have carefully obliterated all traces of the unlawful combination, thus enabling themselves to enjoy in safety the fruits of their criminal arrangement.

But the question for us to determine is whether, by the laws of the land, the plaintiff is entitled to recover, and not what the effect of such a réeovery may be upon the public or individuals. Where it is doubtful what the law is, upon a given state of facts, it is not only proper but it is the duty of a court to’ inquire what the effect will be upon the interests of the public, or of individuals, in determining the rules of law which should be applied in the case; but when it is found that the rules are already settled authoritatively, it is the judge’s duty to declare the law to be as-he thus finds, without regard to consequences, leaving it with the legislature to change the rule, or to some appellate tribunal to reverse the judgment and declare the law as in its judgment it "is found to be.

A person standing in the relation to the plaintiff and Dygert which the defendant did, is not, strictly speaking, either an agent or stakeholder, and yet his relation partakes of both, but mostly that of an agent. He is at all events a trustee for both parties until the happening of the contingency when the plaintiff becomes entitled to the ! money, at which time he becomes the agent of the plaintiff. The defendant, when the day arrived on which the plaintiff became entitled to the money, held it exclusively for her benefit, unless Dygert might even then, upon notice, have recalled it, and if not paid over have maintained an action for it. Whether such an action would lie it is not material to inquire. It is enough to know that Dygert never has demanded it or forbidden the defendant to pay it over. Were it not for the consequences which are likely to follow the establishment of the right to compound a felony, we could not hesitate to declare the law to be that an agent or trustee to whom money is paid for the use of his principal cannot, in an action brought by the principal, defend himself by showing that the consideration of the agreement under which it was paid to him, was illegal. In Tenant v. Elliott, (1 Bos. & Pul. 3,) the defendant, a broker, effected an insurance for the plaintiff, a British subject, on goods from Ostend to the East Indies on an imperial ship. The ship was lost, and the underwriters paid the amount of the insurance to the defendant, who refused to pay it to the plaintiff", although the underwriters had not interfered. By a statute of the parliament such an insurance was utterly void. The action was for this money, and the plaintiff" had a verdict. The defendant applied for an order to show cause why the verdict should not be set aside. A rule was refused. Buffer, J., said : “ Is the man who has paid over money to another’s use to dispute the legality of -the original consideration ? Having once waived the legality, the money shall never come back into his hands again. Can the defendant then in conscience keep the money so paid ? Eor what purpose shall he retain it ? To whom is he to pay it? Who is entitled to it but the plaintiff?’’ Eyre, Gh. J., said: “ The defendant is not like a stakeholder The question is, whether he who has thus received money to another’s use on an illegal contract can be allowed to retain it, and that not even at the desire of those who paid it to him. I think he cannot.” In Farmer v. Russell, (1 Bos. & Pul. 296,) the action was against the defendants as carriers. The plaintiff delivered to the defendants a quantity of counterfeit half pence to be carried to Portsmouth and delivered to a person there, under the name of. medals, for a commission to be paid. The defendants were not to deliver the medals until they were paid for them. The medals were carried and delivered and payment received, and the money accounted for, except £13, for which the action was brought. There was some doubt whether the defendants knew the property to be counterfeit coin. There was a verdict for the defendants, with leave to move to set it aside. The doctrine of Tenant v. Elliott was held to apply, and a new trial was ordered. It seemed to be the opinion of some of the judges that if the defendants had been cognizant of the character of the coin, a ■ different conclusion might have been arrived at. Iiook, J., was of opinion that if the plaintiff, in order to -recover, proved the illegality of the consideration, he could not maintain the action. But none of the judges concurred with him in this view. Eyre, Ch. J., said “ that if it was possible to mix up the original transaction (that is, the one between the defendants and the person at .Portsmouth) with the contract on which the action was brought,” then he concurred in the conclusions of Rook, J. The other judges held there was no connection between the two transactions, so as to render invalid the contract on which the action was brought, and hence the case of Tenant v. Elliott applied. (Hastelow v. Jackson, 8 B. & C., 221.) In Griffith v. Young, (12 East, 513,) the action was brought to recover £40, which the defendant agreed to pay the plaintiff, his landlady, being part of á bonus of £100 which one Pugh agreed to pay the defendant for the good will of the leased premises, which could not be transferred to Pugh wdthout the plaintiff’s consent, and it was in consideration of her consent that the £40 was to be paid. Pugh, cognizant of this agreement, paid the £100 to the defendant, who afterwards promised to pay it, and told her to send for it. The plaintiff was nonsuited, on the ground that the agreement was void, not being in writing. On motion, the court set aside the nonsuit. Lord Ellenborough, Oh. J., delivering the opinion of the court, says: “ If one agree to receive money for the use of another upon a consideration executed, however frivolous or void the consideration might have been in respect to the person paying the money, if indeed it were not absolutely immoral or illegal, the person so receiving it cannot be permitted to gainsay his having received it for the use of that other.” This case was decided in 1810. That of Tenant v. Elliott, in 1797. But while Lord Ellenborough’s qualification of the general rule as to the liability of one receiving money for the use of another, that such money cannot be had when the consideration on which it was paid was immoral or illegal, is wholly at variance with the doctrine of Tenant v. Elliott. Yet I do not find that the latter case has ever been deemed to be overturned or even shaken by the suggestion in Griffith v. Young. In Paley on Agency (p. 62) the principle under consideration is thus clearly and fairly stated: “ It is then said that if money have been actually paid to an agent for the use of his principal, the legality of the transaction of which it is the fruit does not affect the right, of the principal to recover it out of the agent's hands.” (Chitty on Cont. 620.)

If the agreement of the agent is supported by the same consideration as that upon which the payment to the agent was made, the contract of the agent would be void, as is that between the principal and the person paying. (Armstrong v. Toler, 11 Wheat. 258.) In the case cited, the goods having been unlawfully imported into the L nited States by Armstrong and others, were seized, and after seizure Toler agreed to pay the. duties demanded by the government, and Armstrong agreed to pay Toler his proportion of the money thus paid. Upon payment by Toler*, the goods were released and delivered to Armstrong and others, and thereupon Toler sued the defendant Armstrong for his proportion of the money thus paid, pursuant to the agreement. The plaintiff recovered, and the defendant brought a writ of error. On the trial, the court charged the jury that when the contract grows immediately out of an illegal act, a court of justice will not enforce it. But if the promise be unconnected with the illegal act, it is founded on a new consideration; it is not tainted by the act, although it is known to the party to whom the promise was made, and although he was the author and conductor of the illegal act. The proposition was thus illustrated: A., during a war, contrives a plan for importing goods on his own account from the country of the enemy, and goods are sent to B. by the same vessel. A., at the request of B., becomes surety for the payment of the duties, and is compelled to pay them, and the question is can he maintain an action on the promise of B. to return this money. Marshall, Ch. J., in examining, in a very able and elaborate opinion, the question thus presented, says: “The case does not suppose A. to be concerned, or in any manner instrumental, in promoting the illegal importation of B., but to have been merely engaged himself in a similar illegal transaction, and to have devised the plan for himself which B. afterwards adopted. * * * The contract made with the government for the payment, of duties is a substantive independent contract, entirely distinct from the unlawful importation. The consideration is not affected with the vice of the importation.' * * If A. should become answerable for expenses on account of a prosecution for the illegal importation, or should advance money to B. to enable him to pay those expenses,” the court thought this “would constitute a new contract, the consideration of which should be sufficient to maintain an action.” After remarking that the defense of a suit brought in consequence of an illegal consideration was lawful, the learned judge proceeds to say: “Money advanced by a friend in such a case is advanced for a lawful purpose, and a promise to repay it is made on a lawful consideration. The criminal importation constitutes no part of this consideration. * * A subsequent independent contract, founded on a- new consideration, is not contaminated by the illegal importation, although such illegal importation was known to Toler when the contract was made, provided he was not interested in the goods, and had no previous concern in the importation.”

I have cited somewhat extensively from this case, as it illustrates how the parties to the new or collateral contract must have been connected with the original unlawful one, in order to render such collateral contract void. The "same learned judge proceeds to review the English cases which I have cited, and others bearing on the question, and adopts the conclusions arrived at in those cases; so that we have the concurrence of this eminent jurist in the proposition which those cases assert, that when money comes into the hands of a person through or by means of an illegal contract or transaction for the benefit of one of the parties to such illegal proceeding, he cannot defend an action by alleging the illegality of "the consideration by means of which it came into his hands.

In the case before us the defendant was not in any man,ner connected with the illegality of the consideration upon which he received the mone)*. But "it is obvious that he was the instrument selected to carry into effect the unlawful arrangement. I was at first disposed to think that this took the case out of the principle of the cases cited, and made it one in which the defendant was really engaged in the unlawful arrangement, and was therefore like the case put by the judge at the trial of Armstrong v. Toler, of the party sued being consignee of goods consigned with his privity that he might protect and defend them for the owners. In which case the judge held that a bond or promise given to pay advances made in pursuanee of such understanding or agreement would be utterly void.

[Onondaga General Term, October 3, 1865.

In Farrier v. Russell (supra) the defendants were the carriers of the counterfeit coin, and the money was paid to them for such coin. They were the very instruments by which the crime was committed, and yet they were held liable for the money so received. Rook and Eyre, JJ., were of opinion that if it appeared that the defendant knew of the character of the property he carried, he would be thereby a party to the illegal transaction. But Buller and Heath, JJ., were of the opinion that knowledge of the nature of the property was not material. Tenant v. Elliott is a case in which the defendant (being the broker who effected the illegal insurance) knew all about it, and yet that knowledge did not relieve him. Camden v. Anderson (1 B. & P. 277) was in its facts precisely like Tenant v. Elliott.

In Aleinbrook v. Hall (2 Wils. 309) the action was for money lent to pay a bet at a horse race. The plaintiff knew the purpose, as Arnold swore, for which it was borrowed. Faikney v. Reynous (Burr. 2069) was for money loaned, to be used, w-ith the knowledge of the plaintiff, in an illegal transaction.

Hpon a careful review of all the authorities, I am constrained to hold that the plaintiff is entitled to recover, and that the defendant cannot avail himself of the illegality of the dealings between the parties to the arrangement by means of which the money came into his hands, as a defense.

I am therefore in favor of setting aside the nonsuit, and granting a new trial, with costs to abide the-event.

Hew trial denied.

Mullin, Morgan and Bacon, Justices.]