
    John A. K. Duval, Resp’t, v. Horace B. Wellman, App’lt.
    
      (New York Court of Common Pleas, General Term,
    
    
      Filed May 18, 1888)
    
    1. Contracts—Marriage brokage contracts are void.
    All marriage brokage contracts are void as being against public policy.
    2. Same — Money advanced under illegal contract cannot be recovered.
    The parties to such a contract being in pari delicto, one cannot recover of the other money advanced in pursuance of the contract.
    Appeal from an order of the general term of the city court, reversing an order of the special term, which denied plaintiff’s motion for a new trial and directed a verdict for the defendant, and granted a new trial of the action.
    
      W. H. Mundy, for resp’t; Newhall & Fitzpatrick, for app’lt.
    
      
       Reversing; 15 N. T. State Rep., 404. See, also, 15 id., 384.
    
   Bookstaver, J.

The pleadings in the action are not made a part of the case. But from the case as made, it appears that plaintiff’s assignor, Mrs. E. Guión, became a patron of defendant’s matrimonial bureau, in June, 1886, and deposited with him five dollars, registration fee in consideration of his introducing her to some one whom she would be willing to marry, and which defendant promised to return to her upon a certain contingency. That Mrs. Guión continued such patron until August 15, 1887, during which time, she was introduced by defendant to thirty or forty men. None of them suited her.

On June 2, 1887, she went to defendant’s, apparently without solicitation on his part, and told him she was aware that people worked harder, the more money they received and thereupon voluntarily deposited with him fifty dollars, for which defendant gave her the following paper:

June 2, 1887.
“Due Mrs. Guion from Mr. Wellmann, fifty dollars ($50), August 15th, if at that time she is willing to give up all acquaintance with gentlemen who were introduced in any manner by H. B. Wellman. If Mrs. Guion marry the gentleman whom we introduce her to, an additional fifty ($50) is due Mr. Wellman from Mrs. Guión.
“ (Signed), H. B. WELLMAN.
“E. GUION.”

During the eighteen months she was defendant’s patron, both he and his wife acted in a perfectly honorable way towards her as far as she knew at the time.

On the 16th or 17th of August, 1887, Mrs. Guión, not having become suited, demanded back the fifty dollars, and defendant refused to return it; whereupon her assignor commenced this action. These facts and others, not now necessary to state, appearing on the trial, the judge directed the jury to find a verdict in favor of the defendant, upon the ground that the contract was void as against public policy, and the money deposited could not be recovered back.

A motion was made for a new trial, and denied; from which an appeal was taken to the general term of that court; on which appeal the order denying a new trial was reversed, and a new trial ordered. From this last order the present appeal was taken to this court.

The attention given to this case in the court below, and the very elaborate discussion of the principles of law governing it by the judges of that court, have greatly facilitated us in arriving at a conclusion.

It is the unanimous opinion of these judges that the contract in question is void, as against public policy; they also agree that if the parties are in pari delicto, there can be no recovery. They differ only as to whether the parties to the contract are, in fact, equally guilty, and, if not, whether an action at law may be maintained to recover back the money.

On behalf of the plaintiff, it is urged that Mrs. Guión is “a poor, confiding and deluded woman;” that she was “ tricked by the defendant into the belief that he would get for her the husband she wanted; that she was induced, by improper influences, to pay him the fifty dollars; that this was obtained from her “by trick and device;” and a “species of constructive fraud; and it is even claimed that the defendant, in making the contract in question, engaged in a sort of kidnapping of Mrs. Guión into a state of conjugal servitude.

To discover any of these facts in the evidence, one must read between the lines, or they must be inferred from the nefarious nature of the business.

From the evidence it appears Mrs. Guión must have been of full age, or she could not have assigned her claim. She had been married before; and, as far as disclosed, labored under no legal disability. She had been a patron of defendant’s establishment for more than a year before she made the contract. She, and not the defendant, proposed making the contract. There is no evidence in the case of any “improper influence, deceit, fraud, false pretenses or misrepresentations” on the part of the defendant, which induced her to pay the money. On the contrary, she says the defendant “ acted in a perfectly honorable way toward her.” Apparently, she was just as free to act, and as capable of acting, as the defendant, as is shown by the fact that of the thirty or forty “gentlemen” introduced to her, she “would have none of them.”

She continued to patronize defendant’s establishment, to the end of the period fixed in the contract; and it had been fully performed as to her, except in repaying her the money as agreed. We, therefore, think she was as much in' the wrong as the defendant.

As was well said in the court below, “ courts of justice are not required, in any way, to aid the enforcement of an illegal contract, or to lend their assistance, in any respect, to an illegal transaction. The parties being in pari delicto, the courts will leave them where they find them, and not attempt to balance equities, their action is controlled by a principle having no respect to the equities between the parties, but rests upon the solid and broad foundation of a wise and prudential governmental policy. See Rose and Hawley v. Truax, 21 Barb., 361; Schermerhorn v. Talman, 14 N. Y., 94, 102, 141; Tracy v. Talmage, 14 N. Y., 162, 182; Pratt and others v Adams, 7 Paige, 615; Barton and others v. The Port Jackson and Union Falls Plank Road Co., 17 Barb., 397.

The aid of the law is not withheld from any consideration of the rights or equities of the parties as between themselves, but solely to prevent an infringement of the public law or policy of the state. Sedgwick v. Stanton, 14 N. Y., 289.

This does not fall within that class of cases where, although' both parties are in the wrong, yet, by reason of some peculiar advantage taken by the one over the other, they are not in pari delicto; in which case the law will grant relief for the less guilty; as in the case of “Cappers in,” “bunco steerers,” “mock auctioneers,” usurers, etc., Mrs. Q-uion was just as capable of acting as the defendant, and was not deceived by him. On the other hand, she bargained for the very thing which was contrary to law.

The case in principle, is more nearly analogous to gambling, wager, and lottery contracts, where, it is true, actions may be maintained to recover back money paid or lost, although both parties are equally in the wrong; but this is because laws have been enacted, expressly permitting such recovery; and this, we think an additional reason why there should be none in this case, where there is no law permitting it.

Mr. Justice Story, in his Equity Jurisprudence, sections 260, 263, says that money paid on a marriage brockage •contract, may be recovered back in a court of equity, and cites several cases; but these were where money has been paid secretly, for the purpose of bringing about a marriage • with a designated person, and the rights of third parties were involved.

Judge Willard in discussing this question, rests his argument upon the assumption that such contracts are underhand agreements, and constructively fraudulent, as to third persons, or the public, and in support of the argument cites the same cases.

But in this case, the contract did not affect third persons;, was not underhand or secret, and both parties were entirely free to act, and well understood what they were doing. To permit plaintiff to recover, would be to aid one of two. equally in the wrong.

It is unnecessary to discuss the question of the most, effectual way of breaking up such demoralizing institutions, as that is a subject for legislative consideration, and not to be determined by the courts.

For these reasons, and those given in the court below,, we think the order of the general term should be reversed and the order of the special term affirmed, with costs.

As the question is a novel one and of public importance, we think it should be determined by the court of last resort; and leave is therefore given to appeal to the court of appeals.

Larremore, Ch. J., and Allen, J., concur.  