63 So. 803 | Ala. Ct. App. | 1913
To the original complaint in this case a special plea was interposed, which averred “that the sum sued for in this action, and each and every count thereof, is compensation, reward, hire, or commission claimed by the plaintiff for the following services, to wit: For soliciting insurance in this state,
In support of this ground of demurrer it is urged in argument that, as the statute (Code, § 4561) made it the duty of the defendant insurance company itself to obtain from the Insurance Commissioner a certificate of authority for the plaintiff as its agent in this state, in an’ action by that agent ■ against such company the latter cannot be heard to say that it failed to secure such certificate. In this connection the decision in the case of Brooklyn Life Insurance Co. v. Bledsoe, 52 Ala. 538, is referred to. That was an action on a policy issued by a foreign insurance company. It was held that the defendant could not, in avoidance of the contract sued on, set up its own failure to procure the certificate of authority which the statute then in force required to entitle it to do business in this state. In passing upon the question there presented it was said in the opinion : “While it is a settled principle that a contract founded on an act prohibited by statute is void, yet it is subject to this qualification. That, although the Legislature may forbid the doing of a particular act, a party not a privy to’ it, or involved in the guilt of the transaction, may recover of the guilty actor, unless the act itself is
If in such a case the plaintiff could improve his position by showing that the defendant was more in fault than he was, no benefit could accrue to the plaintiff in this case as a result of a comparison of his conduct with that of the defendant. His violation of a criminal statute certainly was not, in the eye of the law, a fault less grave than that of the defendant insurance company in engaging in business in this state without having done what the laAV required to entitle it to do so.
The plaintiff amended his complaint by. .adding count A. This count claimed $740.35 and interest thereon for money had and received for the use of the plaintiff,
To pass on the demurrer to this count, it is necessary, first, to apprehend the state of facts disclosed by its averments as the basis of the claim asserted. As it specifies the particular facts which are relied on as constituting a receipt of money by the defendant for the use of the plaintiff, in construing its averments the nature of the transaction is to be determined from the facts as specifically averred, and if these specific averments do not show the existence of a state of facts on which the defendant is chargeable with liability for money had and received for the use of the plaintiff, the count is subject to appropriate demurrer, and the statement contained in it of the pleader’s conclusions that such liability exists will not serve to cure the defective specification. — Birmingham Railway, Light & Power Co. v. Barrett, 60 South. 262; Chattanooga Brewing Co. v. Smith, 3 Ala. App. 551, 58 South. 63; Johnson v. Birmingham Railway, L. & P. Co., 149 Ala. 529, 43 South. 33.
In the previous allegations referred to in the above-quoted concluding sentence of the count, there is not an intimation that the insured, Harris, Cortner & Co., were in any way parties.to the agreement or arrangement as to the compensation or commission to be paid to the plaintiff, or that at the time of the payment made by them to the defendant they were even aware of the existence of any unsatisfied claim of the plaintiff for compensation for services rendered to or for the defendant in connection with the insurance contracts. It is not averred that they had any dealings at all with
When a claim is made that a payment by a debtor to his creditor on an existing indebtednes was in part
It is not to be questioned that the count under consideration was subject to the demurrer interposed to it if its averments are construed as showing that the plaintiff (appellant here) requires, for the establishment of the right which he asserts, the aid of his criminal conduct in procuring in this state the issuance of
executed its illegality is no defense to an action to recover money paid on the contract by one of the parties to a third person for the use of another” — and the case of Ingersoll v. Campbell, 46 Ala. 282, is cited as such a recognition and application of that rule in this state as to show that it is available, to the benefit of the plaintiff, under the facts of the instant case. The facts in that case were that the plaintiff, Campbell, received,as part compensation for an illegal service rendered by him in violation of a blockade, the sum of $1,000, which he deposited with the defendant Ingersoll, who was the agent of the party with whom the plaintiff contracted to render such service.. The court held, as stated in the headnote, that “money earned upon such a contract, and paid to the party earning it, vests in the person so earning it a good and legal title; and if; after such payment, he deposits or leaves such money with a person to keep it for him, he may recover it from him, although the person with whom the money was so left, as agent for another, made the contract to violate such blockade.” It is plain that the amount allowed to be recovered in that case had already been paid on the illegal contract; as to such amount the party who was to make the payment having fully executed the contract.
In this respect that case is like the later one of Gipson v. Knard, 96 Ala. 419, 11 South. 482, in which the plaintiff, who was the part owner of a lottery ticket, was permitted to recover his part of the amount which
Such cases as those just mentioned are wholly different from the one at bar. In the latter it is not made to appear that anything has been done in execution or performance of the contract to pay the plaintiff for 'the services the rendering of which involved the violation of a penal statute by him. The only payment shown to have been made was made, not by the defendant, but by a third'party to the defendant on a debt owing by such third party, not to the plaintiff, but to the defendant alone. The facts averred show that the payment by such third party was in performance of its own contract, to which the plaintiff was a stranger, and not at all in execution of another’s contract; with the plaintiff. This latter contract remains wholly executory so far as its provision for a payment to the plaintiff is concerned. The defendant has paid nothing on it, and has not agreed or consented to accept or to hold any part of a payment made to it by another as a payment to or
■ — those averments not showing any new or subsequent contract, either express or implied, under which the defendant, for a new and independent consideration moving to it, has subjected itself to liability to the plaintiff for the amount sued for, or any part of it. — Goodrich v. Tenney, 144 Ill. 422, 33 N. E. 44, 19 L. R. A. 371, 36 Am. St. Rep. 459.
The result of the above conclusion is that the defendant is allowed to have the benefit of the plaintiff’s illegal act, done at its instance and in its behalf, and to refuse to pay him for it as promised. The plaintiff fails because, to maintain his action, he must rely on conduct of himself which was a violation of a penal statute, and not because the defendant was any less in fault than he was. The courts do not undertake to enforce the rules of honor which a lawbreaker may expect to be observed by one who has received the fruits of his misconduct under a promise to share such fruits with him.
In Holman v. Johnson, Cowp., 343, Lord Mansfield said: “The objection that a contract is immoral or illegal, as between plaintiff and defendant, sounds at all times very ill in the mouth of the defendant. It is not for his sake, however, that the objection is ever allowed, but it is founded in general principles of policy, which the defendant has the advantage of, contrary to real justice as between him and the plaintiff — by accident, if I may so say. The principle of policy is this: ‘Ex dolo malo non oritur actio.’ No court will lend its aid to a man who founds his cause of action upon an immoral or illegal act. If, from the plaintiff’s own stating, or otherwise, the cause of action appears to arise ex turpi causa, or the transgression of the law of this
Affirmed.