98 Ga. 762 | Ga. | 1896
This was an equitable petition, the grounds of which need. not be stated, brought by James Burns against V. A. Garrison to rescind a contract and recover certain personalty, consisting largely of bar-room fixtures and appurtenances. There was a verdict for the plaintiff, and Garrison made a motion for a new trial, to. the overruling of which he excepted. The following facts affirmatively appear from the evidence introduced by the plaintiff: Before the sale to Garrison, Bums had been engaged in the retail liquor business in the city of Macon. For this pur
It will thus be seen that the parties to the contract under-review necessarily contemplated and intended that there-should be by one of them a violation of the statute which makes it penal to sell spirituous liquors without a license, and that there was a mutual intention on their part to-defraud and deprive the city of the license fee it ought to have received from Garrison when he began to sell liquors. The license in the name of “James Burns & Oo.,” under which he did business, was, as to him, the same thing in law as no license at all; and upon a disclosure of the truth, would, have -afforded him no protection from a criminal prosecution. Both of these parties, therefore, in the making of their contract, had in view two unlawful purposes, one of which was indictable, and the other both fraudulent and contrary to public policy. All this came, to light at the-instance of the plaintiff in making out his case, and the question is: Will a court of equity — a court of conscience-in which all suitors must appear with clean hands — grant him the relief which he seeks?. By our decision we have-ruled that this question should be answered in the negative. The contract being illegal, in the sense that it involves-both criminality and the violation of a sound public policy, and the parties being in pa/ri delicto, no court — and least of all a court of equity — will aid the plaintiff in getting
It would seem that the general rule deducible from all the authorities is as stated in Clarke on Contracts, 491, viz: “that the court will not lend its aid to a party who, as the ground of his claim, must disclose an illegal transaction.” "We understand this to mean that whenever either party has to rely upon a contract which is in fact illegal, the other party may, in avoidance of it, show its illegality. The plaintiff in the present case does not, it is true, rely on the contract. On the contrary, he seeks to rescind it. But he had to bring it to light, and in making out his case disclose i.ts real nature; and as it was an executed contract, this gave the defendant the right to invoke the rule that the court should leave them where it found them.
The cases of Ingram v. Mitchell, 30 Ga. 547, and Clarke, Harrison & Co. v. Brown, 77 Ga. 606, are not in
The plaintiff was not entitled to a recovery, and the judgment in his favor ought to have been set aside.
;Judgment reversed.