65 Neb. 452 | Neb. | 1902
This is an action at law to recover the sum of $40 paid by the defendant in error to the plaintiff in error to prevent a criminal prosecution. There was a trial to the court without a jury and finding and judgment for the plaintiff below, from which the defendant has taken error to this court.
The record discloses the following facts: Pederson, the
The law7 is well settled that one who has been a party to an illegal act will not be relieved from the legal effect of it. No court of law or equity wilt lend its assistance in any way towards carrying out an illegal contract. Therefore such contract can not be enforced by ont*- party against another either directly, by asking the court to carry it into effect, or indirectly, by claiming damages or compensation for a breach of it. Gould v. Kendall, 15 Nebr., 549. That a party who is in pari delicto can not make his illegal act the basis of a recoven7, has been definitely settled by this and many other courts. Rut where a strong mind takes advantage of a weaker, and by persuasion and influence procures the illegal act, this rule ceases to be applicable. The wrong then rests chiefly, if not solely, on the person by whom it was contrived, and his confederate is regarded as the mere instrument for accomplishing an end not his own. If a party should' be allowed immunity under such circumstances he would be permitted to take advantage of his own wrong, and reap a benefit from his own fraud. Davidson v. Carter, 55 Ia., 117. In Hess v. Culver, 77 Mich., 598, it is said: “Where a man is defrauded, as often happens, by the misrepresentation of some one who assumes knowledge, and where, under the circumstances/ he is actually deceived, and not consciously wrong, the fact that the transaction is against public policy in law7 will not necessarily compel the victim to submit to the fraud of the actual villian. The only rigid rule forbidding relief is where parties are in equal guilt. While the law7 does not draw7 fine distinctions in ascertaining equality of wrong, it recognizes the fact than one party to such an arrangement is not necessarily an equal party in guilt or consciously guilty at
The evidence in the record is amply sufficient to sustain the finding of the trial court. It is doubtful if the butter shown to Rohde as that sold by Pederson was not butter, made by some other party. The testimony is amply sufficient to support the theory that Yanow and Klein entered into a conspiracy to extort money from Pederson by making a false charge that he had sold adulterated butter. Under the circumstances, they should not- be allowed to profit at his expense, nor should he, who was not consciously violating any law, be denied relief against those who took advantage of his ignorance.
We recommend that the judgment of the district court be affirmed.
By the Court: For the reasons stated in the foregoing-opinion, the judgment of the district court is
Affirmed.