
    John A. K. Duval, App’lt, v. Horace B. Wellman, Resp’t.
    
      (Court of Appeals, Second Division,
    
    
      Filed January 14, 1891.)
    
    
      1. Marriage brokerage—Restitution on money paid on.
    Marriage brokerage contracts are void; but where the parties are not in pari delictu the courts will restore them to their original position.
    3. Same.
    The natural tendency of a business to promote marriage is immoral, and it is so clearly the policy of the law to suppress it that courts will aid the party who has patronized it by relieving him or her from all contracts-made, and grant restitution of any money paid or property transferred to-the broker.
    3. Same.
    Plaintiff’s assignor, a widow, after seeing defendant’s advertisement, went to his office, paid a fee and was introduced to several gentleman. Thereafter she paid defendant fifty dollars and took from him a paper stating that amount was due her if by a certain time she was willing to give up acquaintance with gentlemen introduced by defendant; but if she was married to any such gentleman fifty dollars more was due defendant. Held, that the court below erred in holding as a question of law that both parties were equal in guilt; but it was a question for a jury.
    Appeal from an order of the general térra of the court of common pleas of the city of New York, which reversed an order of the general term of the city court, which reversed an order of the special term of said court, which denied a motion for a new trial.
    The facts appear in the opinion.
    
      William K Mundy, for appüt; B. W. Newhall, for resp’t.
   Brown, J.

The record before us does not contain the pleadings, and we are not informed of the grounds upon which the plaintiff therein based his right to recover. The case has, however, been disposed of in defendant’s favor in the court below, on the ground that the contract between the parties, upon which the money was paid was illegal, and that the plaintiff's assignor was particeps criminis and equal in guilt with the defendant. But whether the cause of action was based upon the contract or upon the illegality of the contract, and in disaffirmance thereof, does not appear.

The questions discussed in the lower courts have, however, been regarded, as of sufficient'importance to receive the consideration of this court, and as they were the only ones discussed at our bar we may confíne our observations to them without regard to the particular issue made by the pleadings.

It appears from the evidence that the plaintiff is the assignee of Mrs. E. Guión,- a widow lady, who, in her search for a husband, sought the advice and aid of the defendant, who was the owner and publisher of a matrimonial journal called The New York Cupid, and the proprietor of a matrimonial bureau in New York city.

Mrs. Guion’s testimony was to the effect that in June, 1886, she became a patron of the defendant’s establishment and paid the usual registration fee of five dollars. That she was introduced to thirty or forty gentlemen but found none whom she was willing to accept as a hnsband, and that in June, 1887, for the purpose of stimulating the defendant’s efforts in her behalf she paid him fifty dollars, whereupon there was executed the following instrument :

"■June 2,1887.

“Due Mrs. Guión from Mr. Wellman, fifty dollars ($50.00), 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. Guión marry the gentleman whom we introduce her to, an additional fifty dollars ($50.00) is due Mr. Wellman from Mrs. Guión.

(Signed.) “ H. B. Wellman.

“E. Guión.”

In August, 1887, Mrs Guión, not finding a congenial companion among any of the men to whom she had been introduced and claiming to be willing to give up all acquaintance with them, demanded from defendant the return of the money paid, which being refused, the claim was assigned to plaintiff and this action was commenced.

The five learned judges who have delivered opinions in the case have agreed that the contract between the parties was void, and this conclusion appears to be amply supported by authority. 1 Story Eq. Jurisprudence, §§ 260 to 264; 2 Pomeroy Jurisprudence, § 931; Willard’s Jurisprudence, 211; Bacon’s Abridgment, title Marriage and Divorce, D.; Eonblanque’s Eq., chap. 4, '§ 10; Boynton v. Hubbard, 7 Mass., 112 ; Crawford v. Russell, 62 Barb., 92.

Judge Story, after discussing the grounds upon •which courts; of equity interfere in cases of this kind, says:: “It is; now firmly established that all such contracts are utterly void,, as against public policy, * * * and Chief Justice- Parsons said in Boynton v. Hubbard, supra-, that “these contracts; are-void *• * * because they have- a tendency to> cause matrimony to be contracted on mistaken principles and without.the-advice of friends, and they are relieved against as- a. general mischief for the sake of the public.”

The doctrine that marriage brokerage- contracts- are- void is; the-outgrowth of the views and opinions; of the English people- upon the subject of the marriage relation-,, and the courts- of England for upwards of a century have universally declared that the natural consequences of such agreements would be to bring about, ill-advised and, in many instances, fraudulent marriages, resulting inevitably in the destruction of the hopes and fortunes ®£ the-weaker party, and esjaecially of women, and that every temptation in the exercise of undue influence in procuring a marriage-should therefore be suppressed. The defendant has, however, succeeded in the lower court upon the application ©f the rule that a court will not lend its aid to either of the parties- to an illegal or fraudulent contract, either by enforcing its execution if it be- ex-ecutory, or by rescinding it if it be executed.

Public policy has dictated the adoption of this; rule, but it has its limitations, and when the parties are not equally guilty, or when the public interest is advanced by allowing the more- excusable of the two to sue for relief, the courts will- aid the Injured party by setting aside the contract and restoring him so- far- as. possible to his original position. 1 Pomeroy’s Equity, §, 403 1 Story’s Equity, § 300.

It is not sufficient for the defendant to show merely that the other contracting party is particeps criminis, but it must appear -that both are equal in guilt, unless the contract be malum in se, in which case the maxim ex dola malo non oritur actio is, of universal application.

This subject received very full consideration in the ease of Tracy v. Talmage, 14 N. Y., 162, and it was there said that unless the parties are in pari delictu as well as particeps criminis the courts, although the contract is illegal, will afford relief to the more innocent party.

Upon the application of this doctrine in Mount v. Waite, 7 Johns., 434, premiums paid for the insurance of lottery tickets were recovered, the plaintiff being held not to be equal in guilt with the defendants.

In Wheaton v. Hibbard, 20 Johns., 290, it was held that usurious interest paid by a borrower could be recovered independent of the statute, and that the maxim inter partes in pari delictu potior est conditio defendaniis did not apply, as the law considered the borrower the victim of the usurer; and Lord Mansfield laid down the rule that in transactions prohibited by statute for the protection of one set of men from another set of men, the parties are not in pari deliciu. Browning v. Morris, 2 Cowp., 790. See, also, Schroeppel v. Corning, 6 N. Y., 107, 115, 116.

It will appear from an examination of the authorities upon this subject, a very few only of which are cited, that courts, both of law and equity, have held that two parties may concur in an illegal act without being deemed in all respects in pari deliciu.

In many such cases relief from the contract will be afforded to the least guilty-party when he appears to have acted under circumstances of imposition, hardship, or undue influence, and especially where there is a necessity of supporting public interests or a well settled policy-of law, whether that policy be declared in the statutes of the state or be the outgrowth of the decisions of the courts.

Accordingly many cases may be cited where relief has been granted from contracts which partook of the character of marriage brokerage agreements. The cases are collected in Pomeroy’s Equity Jurisprudence in a note to § 931, in Eonblanque’s Eq., B. I., chap. 4, §§ 10 and 11, and Bacon’s Abridgement, Title Mar-, riage and Divorce, 541 etseg., and need not be cited here.

In two of the cases referred to, money paid under the contract was recovered back. Smith v. Bruning, 2 Vern., 392; Goldsmith v. Bruning, 1 Eq. Cases, Abr., 89.

The question in this and kindred cases, therefore, must always be whether the parties are equal in guilt. Obviously cases might arise where this would clearly appear and where the court would be justified in so holding as a matter of law, as where there was an agreement between two, having for its purpose the marriage of one to a third party, the parties would be so clearly in pari deliciu that the courts would not aid the one who had paid money to the other in the promotion of the common purpose to recover it back. Such a case would partake of the character of a conspiracy to defraud. So if two parties entered into a partnership to carry on such a business as defendant conducted, the courts would not lend their aid to either to enforce the agreement between them.

But where a party carries on a business of promoting marriage, as the defendant appears to have done, it is plain to be seen that the natural tendency of such a business is immoral, and it would be so clearly the policy of the law to suppress it, and public interest would be so greatly promoted by its suppression, that there would be no hesitation upon the part of the courts to aid the party who had patronized such a business by relieving him or her from all contracts made, and grant restitution of any money paid or property transferred. In that way only could the policy of the law be enforced and public interests promoted.

Contracts of this sort are considered as fraudulent in their character, and parties who pay money for the purpose of procuring a husband or wife will be regarded as under a species of imposition or undue influence.

The subject is classed by all text writers under the head of-constructive or implied fraud, and it is upon the application of rules which belong to that branch of the law that the case's have been decided to which I have referred.

We are of the opinion, therefore, that it was error to hold as a legal conclusion that the parties to the contract in question were equal in guilt.

The learned general term of the common pleas appeared to have considered that the voluntary character of Mrs. Gruion’s acts was decisive of this question and deprived her of the right of recovery. It is true there is no evidence of actual over persuasion or undue influence, but at most the inferences to be drawn from these facts were for the jury. The prominent fact in the case is that such a place as the defendant maintained existed in the community with its evil surroundings and immoral tendencies.

What influence was exerted upon the mind of the widow by the mere fact of the existence of such a place to -which resort could be had, cannot of course appear except by inference. But if the evidence was not sufficiently strong to authorize the court to bold as a question of law that the parties were not in pan delictu, it at least presented a question of mixed fact and law for , the jury.

Our opinion is that the same reasons that have induced courts to declare contracts for the promotion of marriage void, dictate with equal force that they should be set aside and the parties restored to their original position. To decide that money could not be recovered back would be to establish "the rules by which the defendant and others of the same ilk could ply their trade and secure themselves in the fruits of their illegal transactions.

We are of the opinion, therefore, that the common pleas erred in reversing the order of the city court, and that a new trial should have been granted.

The order appealed from should be reversed and the order of the general term of the city court affirmed, with costs.

All concur. 
      
       Reversing 16 N. Y. State Rep., 607.
     