12 Pa. Super. 412 | Pa. Super. Ct. | 1900
Opinion by
This is a suit between private individuals. It is upon a contract of insurance, made by the defendant and several other individuals and firms, in which the defendant agrees to-pay plaintiff a certain sum in case of his loss by fire. It is-agreed that a loss has occurred, and that plaintiff has performed all the conditions required by the policy to entitle him to payment. The plaintiff’s right to recover arises because the defendant has promised, in the contract of insurance, to pay him. The breach of thus promise to pay is, therefore, the cause-of action. The defense is based upon the Act of February 4, 1870, P. L. 14, the first section of which provides that such contracts as the one sued upon “ shall be void,” and the second section of' which provides that the person issuing such a .contract shall be deemed guilty of a misdemeanor and upon conviction shall pay a fine not exceeding a certain sum.
■ These facts raise the question whether an action will lie-upon a contract which the legislature has declared shall be void if made. This question has been determined in the negative by our Supreme Court nearly one hundred years since, in the case of Mitchell v. Smith, 1 Binn. 110, s. c. 4 Dall. 269. In fact that case went further, for it decided that a contract for
We cannot agree with the learned court below in holding that this case is to be determined by those cases which hold that the doctrine of ultra vires shall not be allowed to prevent
We do not think it necessary to discuss or attempt to point out the difference between the cases relied upon by the learned court below and the present case. We have already said that those illustrating how the doctrine of ultra vires must give way, under proper circumstances, to the doctrine of equitable estoppel cannot rule this case, where the defense is not that the contract is ultra vires. Those decided on other grounds are easily distinguished from the present case, for in none of them was it decided that a contract could be recovered on, which a statute flatly declared to be void and made the person who executed and issued it guilty of a misdemeanor. In fact it is clear from the opinion of the learned court below that it agreed that the law was as we have found it to be. Our difference is that we cannot agree that the fact that defendant received and retained the premium took this case out from under the opera
It only remains to consider whether the demand connected with this illegal transaction is capable of being enforced at law, the test of which is said to be whether or not the plaintiff requires the aid of the illegal transaction to establish his case. In our recent case of Allen v. Line, 11 Pa. Superior Ct. 517, we said: “ In the cases cited on this subject it is frequently said that the plaintiff will fail if the evidence shows that he needs the aid of the illegal transaction to establish his case, but we cannot take this to mean that the mere introduction of evidence of the illegal transaction defeats the plaintiff. The question still remains, does he need the evidence to prove his case ? ” It is plain that the plaintiff in this present suit must prove that the defendant’s promise to pay the loss, found nowhere but in the void policy, has been made and broken. He can only prove that it was made by putting in evidence the policy, but when he shows its existence he also shows that it is void. As he cannot recover on a void contract he must necessarily fail.
Judgment reversed. •
Peb Ctjbtam, January 17, 1900:
The above opinion was written by Judge Beebeb during his term of office as a member of this court, the case having been duly assigned to him for that purpose. It is now adopted and filed as the opinion of the court.