22 Wis. 447 | Wis. | 1868
The counsel on both sides substantially concede that the rule is well settled, that courts will not enforce illegal contracts; but they differ as to the application of that rule to the facts of this case. So far as the nineteen tickets, which the defendant retained for himself, are concerned, it is admitted by the plaintiff’s counsel that no recovery can be had. Then the question arises, "Was the plaintiff entitled to recover the money received by the defendant for tickets sold by himself ? It is insisted that he can recover that money because the illegal contract has been fully executed; the purchasers of the tickets having paid over the same to the defendant for the use of the plaintiff. It is said that when money is paid by one person, on an illegal contract, to the agent of the party entitled to receive it, such agent cannot set up the illegality as an answer to the claim of the principal; that, as between the agent and the principal, the action is not founded on the illegal contract, nor does the obligation of the agent to. pay over the money grow out of such contract, but arises from the fact that the agent has received money for the principal. This' may be true in some cases, and seems to be the ground upon which Tenant v. Elliott, 2 B. & P., 4; Farmer v. Russell, id., 296; Sharp v. Taylor, 2 Phillipps (22 Eng. Ch. R.), 801; Owen v. Davis, 1 Bailey, 315, and some other eases to which we were referred on the argument, are decided. It seems to us, however, that the doc-.
But the money which the defendant received from Kil-gore stands upon -different grounds. So far as that money was concerned, it seems to us that it stands precisely on the same ground it would, had Kilgore delivered the money to some stranger, or to an express company, to transmit it to the plaintiff. It is disconnected with the illegal transaction, and is not affected by it. It is the case suggested by the Master of the Rolls in Thomson v. Thomson, 7 Ves., Jr., 468-471, of money paid into the hands of a third per-, son for the use of the plaintiff, who may recover the same, from such third person, although the money is the proceeds of some illegal transaction. Merritt v. Millard, 5 Bosworth, 645. Therefore, so far as respects the two hundred and fifty-five dollars paid the defendant by Kilgore for the plaintiff,- the action is maintainable.
The judgment of the county court must be reversed, and the cause remanded with directions to enter judgment for the plaintiff for that amount.
By the Court. — Ordered accordingly.