Martin v. Wade

37 Cal. 168 | Cal. | 1869

By the Court, Rhodes, J. :

That the- agreement between Wiley and McCarthy, as stated in the answer, was in violation of the general law of public policy, immoral, and malum, in se, and, therefore, wholly void, there can be no reasonable doubt. Contracts by which parties agree to bestow their money and services to secure the election of candidates for public office, and the candidates, in consideration thereof, agree, if elected, to share with such parties the profits and income of their offices, corrupt and poison the very source of political power in republican governments.

There is a marked distinction between contracts which are malum in se, and those which are merely malum prohibitum, and it is recognized in all the cases involving questions growing out of illegal contracts. Remedies are, in certain classes of cases, afforded to one of the parties to contracts of the latter character, while they are always refused to either party to the former. The principle that parties to a contract malum in se, whether it be executory or executed, whether the action be brought on the contract or to recover the consideration, are denied all remedy by the Courts, is clearly and firmly established by a series of decisions almost unbroken, extending from the early history of the common law, down to the present time. There is no rule of law placed more completely beyond controversy than this. It is to such contracts especially that the maxim, Ex turpi causa non oritur actis has application, and also the kindred maxim, In pari delietu potior cat conditio defendeniis. In contracts which contemplate the performance of some act which involves moral turpitude or violates the general principles of public policy—or, generally stated, which are malum in se—both parties are in pari delictu; and when either party brings an action on the contract or matters growing out of it, they are told, in the language of Mr. Chief Justice Wilmot: “You shall not stipulate for iniquity. All writers upon our law agree in this: no polluted hand shall touch the pure fountains of justice. Whoever is a party to an unlawful contract, if he hath once paid the money stipulated to be paid in pursuance thereof, he shall not have the help of a Court to fetch it back again; you shall not have a right of action, where you come into a Court of justice in this unclean manner, to recover it back.” (Collins v. Blantern, 2 Wilson, 341.) A review of the authorities at this time would not add strength to the doctrine, for it is considered on all hands as beyond' the reach of attack. Most of the cases cited by counsel have relation to contracts involving matters that are merely mala prohibita, without any taint of moral turpitude, and in which it was held that the party who was not found to be in pari delictu was permitted to recover; but there is no occasion to raise this or the like questions here, for in a contract of the character of the one before us, the parties are alike guilty. (See Chitty on Con. 625; Pars, on Con. 253; 1 Story Eq. Jur., Sec. 296; Howson v. Hancock, 8 Term R,. 575; White v. Franklin Bank, 22 Pick. 181; Lowell v. Boston & Lowell R. R., 23 Pick. 24; Tracy v. Talmage, 14 N. Y. 167.)

• Wiley, then, under this rule, could not have recovered the money ho advanced to McCarthy, unless the fact that the contract was rescinded modifies or changes the rule. The plaintiff’s position is, that the contract having been rescinded and annulled before performance, Wiley was entitled to recover the money he had paid on the contract, and he argues that, as both or either of the parties to a contract void as against public policy may rescind it, the usual consequences would follow the rescission, as in contracts not tainted with illegality. But it seems clear, in our opinion, that the principles of rescission have no sort of application to a contract of this kind. It was totally void at its inception, and never acquired any subsequent validity. The rescission of it would be as idle as the attempted rescission of an unsigned promissory note. There was nothing which the law will recognize as a contract to be rescinded. Legal remedies are not withheld or granted accordingly as the parties have or have not accomplished the illegal act, but they are withheld. because the parties have entered into a contract involving an illegal act. The rescission of the contract, therefore, before the performance of the illegal act stipulated for, would not remove the taint of illegality attaching to all that was done under the contract. The Courts, refusing to defile their hands with those transactions, deny the parties all relief in respect to the contract, or anything incidental • to it or growing out of it.

There being no liability or implied promise on the part of McCarthy to repay Wiley the money he paid under the eontraqt, and there being no other consideration for the note, it is without consideration; and as the plaintiff took with notice, he is not entitled to a recovery.

Judgment reversed, and cause remanded, with directions to overrule the demurrer to the answer, and remittitur directed to issue forthwith.