106 Ga. 156 | Ga. | 1898
The following is the written contract declared upon by plaintiff below in its amended petition, and which was introduced on the trial of the case:
“Bradley Fertilizer Company, Boston, Mass.
“This agreement made this 13th day of March, 1888, between Bradley Fertilizer Company of Boston, Mass., and G. T. Holleman <k Son of Lamar’s Mill, Upson- Co-., Ga., witnesseth,*159 that said Bradley Fertilizer Company hereby.-agrees to supply said G. T. Holleman & Son with a limited quantity of fertilizer ■ for sale by them during the season of 1887 and 1888, upon fol- • lowing terms and conditions: The fertilizers to be delivered F. O. B. cars at Butler, Ga., viz.: 12 tons,Sea Fowl Guano at 26 - dollars per ton 2,000 lbs., which price ns-.to-.be net to the Brad-ley Fertilizer Co., exclusive of all charges-and commissions. A complete statement of the season’s sales with,a list of the pur-. chaser’s names in full is to be furnished"said Bradley Fertilizer • Co. by said G. T. Holleman & Son, not .later,-than May 1,1888., Settlement is to be made- on or before May.-l; .1888, for all said fertilizer sold to date of settlement by said G. T. Holleman &. Son, by note or notes of said G. T. Holleman & Son. maturing-not later than November 15, 1888,.and payable at Macon, Ga.,. without any expense whatever of remittance to said Bradley - Fertilizer Company. The specific cash, checks, notes, liens, and; other obligations received from time to time-by said G. T. Hollé- ■ man & Son in payment for or on account of said goods sold by • them are tobe so and held in trust’for the Bradley Fertilizer - Co. and forwarded to said Company not later than May 1st, 1888, to secure the payment of note or.-notes of said G. T. Holleman & Son. All checks, notes, liens,.and other obligations so-received are to be guaranteed by said'G. T: Holleman & Son, and, if returned to or left with them for • collection, are, with the proceeds, to be at all times the property of the -Bradley Fer-. tilizer Company, until the note or • notes of- said G. T. Holleman & Son are paid in full. Said notes of G. T. .Holleman & Son must be met at maturity, and their prompt payment must. not depend upon the collections-of i the notes-or accounts of the-persons who have purchased said-fertilizer. Saicbfertilizers until sold are the property of the Bradley Fertilizer-Co., and any part thereof unsold on May 1st next--is to-be subject to their-order, but the said G. T. Holleman & Son hereby agree to keep - them well sheltered and ’to-ha-ld the same free of all charges and. storages.
[Signed] Bradley ■ Fertilizer Company,
by F. M: Johnson, Jr., Agent.
G. T. Holleman & Son, Lamar’s Mills, Ga.
Shipping Point, Butler, Ga..
*160 “Subject to approval of home office.
36 tons to date, Mch. 21, 1887.
Freight from Pensacola, per ton, $4.44.”
I)i the case of Ingram v. Mitchell, 30 Ga. 547, it was decided: “Where an agent receives money for h’is principal upon an illegal contract, he can not avail himself of that defense in an action brought against him by the principal for money had and received to the plaintiff’s use, especially when those who paid over the money to the agent do not desire that he should retain it. When money is actually paid over upon'an illegal contract, it is clear that it can not be recovered back, the contract being; executed, and both parties being in pari delicto. A party may, in some cases, be allowed to retain money which was due to him ex equo et bono, but which he could not have recovered at law; yet he never can be allowed to retain money to which he has no claim whatever against the true owner.” This decision was based upon the sale of a negro slave, made by an agent for the owner for the purpose of saving the slave’s life then endangered by a charge against him of a capital offense. The object of' the sale was evidently illegal; yet the agent, having actually sold the slave and received money for the principal, was held liable. See authorities cited in the opinion, collected by Lump-kin, J. This case is cited approvingly in Clarke v. Brown, 77 Ga. 610. In that case Chief Justice Jackson, delivering, the-opinion, says: “The agents can not set up the illegal contract, because they made it and got a consideration for using the money illegally, and are particeps criminis. Just as if it had been necessary for the- plaintiff — the principal — to use the illegal contract to recover the money, which would have been necessary had he sued for the profits of the venture, so it is illegal 'for the agents to úse it to defend the suit for money they have' belonging to the principal.” The case in 30 Ga., cited above, is much stronger than the one at bar, for invoking an illegal contract as a defense to an action. For in this case the illegal' contract was made by the agents themselves, who set it up as a defense, besides being fully executed .by the purchasers paying to the agents the money agreed on in the illegal contract. This-money the agents held in trust for their principal.
Judgment affirmed.