103 Pa. 498 | Pa. | 1883
delivered the opinion of the court,
In this case, by a special verdict, the jury found that tire plaintiff was, in the year 1878, the year of the transaction involved in this controversy, and also for some years before and after that period, engaged in the business of buying and selling
If then the business itself bo unlawful, the commissions or
But the plaintiff’s main contention is, that as the transaction took the shape of a special contract, and as under his narr. and proof, he might have recovered without a revelation of the illegal character of that contract, therefore, and notwithstanding its true nature was revealed by cross-examination, he was entitled to recover. It might be enough to answer that in this he is met in the teeth by the case above cited. It was not necessary to the plaintiff’s recovery in that case, that he should have proved that he had license, for that might have been presumed, but the fact that he had not license appeared on cross-examination, hence he lost his case. Nor does Shepler v. Scott, 4 Nor. 329, sustain the point made by the plaintiff, for there not only was the action on a special contract, but it nowhere appeared that the plaintiff was a broker, or that he had not been licensed. Again, the rule laid down in Swan v. Scott, 11 S. & R. 155, is cited as conclusive of this case. It was there said, as has been said in- many succeeding cases, that the test whether a demand connected with an illegal transaction, can be enforced at law, is whether the plaintiff requires the aid of the illegal transaction to establish his case. About this rule there is no special obscurity, and if there were any such obscurity, it may be rpadily made clear by an examination of the case itself. The plaintiff, Scott, obtained an award of arbitrators against Swan, founded on an illegal lottei'y transaction,- from which Swan appealed. He afterwards, withdrew the appeal, and, on the same day, executed to Scott his bond for the amount of the award, and thereupon Scott entered satisfaction of record. Then, in a suit brought upon the bond it was held, that the defendant could not go beyond that obligation to show that the foundation of the proceeding award was an illegal transaction. The argument of Mr. Justice Duncan on this point is unanswerable. “If,” says the learned justice, “Swanhad acquiesced in this award for twenty-days, the judgment would have been final; but the judgment remained notwithstanding the appeal, and when it was withdrawn Scott might have issued his execution ; the judgment became final, and I may add,.irreversible ; it fixed both parties; there was an end of the controversy.” The consideration of the bond was the award, which had, by the agreement of the parties, passed into a judgment, and that judgment could not be attacked collaterally, hence there was no way by which the original transaction could he reached. But how does all this fit the ease in hand ? Johnson has no intervening judgment behind which to shelter his illegal claim ; he has not so much as a bond or note ; he stands upon the illegal contract alone, and asks us to say that because in his narr. and case in chief he has
It will here be seen that tlie doctrine thus stated goes one step beyond what is required to sustain the ruling of the court below in the case in hand, for the defense was permitted to pass over the note and attack the contract in which it originated. Here, however, all that has been doné has been to show the unlawful character of the very transaction on which the-suit is
We are therefore brought to the conclusion that the court below committed no error in directing judgment to be entered on the special verdict for the defendant!
The judgment is affirmed.