102 Ga. 754 | Ga. | 1897
Swanson brought an action against the Raleigh & Gaston and Seaboard & Roanoke Railroad'Companies as joint lessees of the Georgia, Carolina & Northern, the Carolina Central, and the Raleigh & Augusta Railroads, which constitute the system known as the Seaboard Air-Line, extending from Atlanta, Georgia, to Norfolk, Virginia, for breach of contracts. In his petition he alleged, in substance, as follows: He being a ticket-broker in Atlanta, Ga., and in position to control a great amount of business over the various roads centering there and leading therefrom, and defendants desiring to have tickets over their system handled by him, procured the
Prior to the act of Congress above quoted, interstate commerce traffic in this country was regulated by the principle of' common law applicable to common carriers. There seems to be a conflict of authority as to whether or not, at common law, common carriers would be bound to make the same charges to' all persons for the same service, the weight of authority in this country being in favor of equality of charges. See Interstate Commerce Commission v. B. & O. R. R., 145 U. S. 275-276. Perhaps, on account of such conflict, and further, for the reason that the several States were powerless to prevent unjust discrimination as to traffic going beyond their respective boundaries, Congress took the matter in charge with a view of preventing unjust discriminations throughout the country.
It was contended by the able counsel for defendant in error in this case, that the transaction in question was tantamount' only to a sale of tickets at wholesale, and that, under the ruling in the case last above cited, the act of Congress was not intended to ignore the principle that one can sell at wholesale cheaper than at retail. ’ It will be seen from an inspection of that case, that the question involved therein was the legality of the sale of what is known as a “party-rate ticket”; that is, a ticket for the transportation of a number of persons from a place in one State or Territory to a place situate in another State or Territory at a rate less than that charged to a single individual for a like transportation on the same trip. There is no siniilarity in that respect between the present case and the one just cited. If, instead of issuing a single ticket for a company of ten or more persons, the common carrier had issued in that
It is further contended on behalf of the defendant in error, that even if the contract is illegal, it is not malum in se, but malum prohibitum, and that he can recover back the money he paid the railroad. “A broker, or other agent, employed to carry out an illegal transaction, can not recover for losses incurred or disbursements made by him in the course of the transaction, if he was privy to the principal’s unlawful purpose.” Clark on Contracts, §213. The same author, on page 494, quotes' from Lord Kenyon, to the effect that, “ There is no case to be found where, when money has actually been paid by one of two parties to the other upon an illegal contract, both being participes criminis, an action has been maintained to recover it back again.” Some exceptional cases, however, are recognized by this author, and are undoubtedly sustained by good authority. These he groups as follows: “(a) Cases in which a locus poenitentise remains, and while the agreement is unperformed money or goods delivered in furtherance of it are allowed to be recovered. (b) Cases in which the parties are not regarded as
Judgment reversed.