
    John A. K. Duval, App’lt, v. Horace B. Wellman, Resp’t.
    
    
      (City Court of New York, General Term,
    
    
      Filed April 9, 1888.)
    
    Marriage brokerage contracts—Matrimoniar agencies—Action to-RECOVER DEPOSIT.
    Moneys paid to matrimonial brokers are obtained by constructive fraud, and may be recovered back in an action for money had and received. The party paying the money is not in pa/ri delicto with the person receiving it. The legal and equitable rights of the parties considered, and the question. how far such contracts ofEend public policy discussed.
    The action, so far as the record discloses, is for money had and received. The facts are: The defendant is the proprietor of a matrimonial bureau, and the plaintiff’s assignor, Mrs. E. Guión (a widow), being desirous of securing a companion for life, became a patron of the defendant’s establishment. She deposited with the defendant the usual registration fee of five dollars, and subsequently deposited with him fifty dollars more, for which she received a document in the following words:
    June 2, 1887.
    Due Mrs. Guión from Mr. Wellman, fifty dollars, August 15, 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 marries the gentleman whom we introduce her to, an additional fifty dollars is due Mr. Wellman from Mrs. Guión. •
    H. B. WELLMAN.
    E. GUION.
    Mrs. Guión being willing to renounce all the acquaintances referred to in the contract upon the 16th or 17th of August, 1887, demanded the return of the fifty dollars aforesaid, which the defendant refused to pay.
    Upon these facts, the trial 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. From an order denying a motion made. by the plaintiff for a new trial the present appeal is taken.
    
      William H. Mundy, for app’lt; Newhall & Fitzpatrick, for resp’t.
    
      
       Reversing S. C., ante, 384.
    
   McAdam, Ch. J.

We agree with all the learned trial-judge has written in regard to the sacred character of the marital relation, and approve of all he has said in condemnation of matrimonial agencies, and have only to regret that he did not give practical effect to his views by requiring the defendant, as the proprietor of one of these obnoxious bureaux, to refund to the plaintiff the money he exacted from the plaintiff’s assignor, contrary to the policy of our law. The trial judge held that the plaintiff’s assignor was equally guilty of a legal wrong with the defendant, and that she could not, therefore, recover. He seemed to think that allowing a recovery would be to sanction and encourage matrimonial agencies. We think the most effectual way of breaking up such institutions is to compel the proprietors thereof to disgorge every dollar they receive from, their victims.

We are aware of the maxim, In pari delicto, melior est conditio posidentis, but in applying the rule it is necessary to ascertain whether, under the given circumstances, the delinquency attaching to each of the principal parties is really equal in degree, for courts, both of law and equity, have held that two parties may concur in an illegal act with-, out being deemed to be in all respects in pari delicto. Brown’s Maxims, (7th Am. ed.), 728, 729.

Sound morality is the corner-stone of the social edifice, yet the law has wisely distinguished between the seducer and seduced, and between the gambling and the lottery shop keeper, card monte player, capper-in, buncy-steerer and mock auctioneer on the one hand, and their victims on the other. It has discriminated in favor, of the borrower against the usurious lender, striking in all the cases at the root of the evil, in an endeavor to extirpate it, in all cases punishing the criminals, but in none of them denying justice to the confiding and defrauded victims. These instances at least show the tendency of public policy. The matrimonial agent does not occupy a much more favorable position in the eyes of the law that the individuals before referred to,' for money and property obtained by him are treated as having been procured by a. species of constructive fraud (Story’s Eq. Jur., sec._ 260), and upon this theory, bonds and conveyances given in furtherance of marriage brokage contracts have been canceled by the courts and recoveries allowed compelling the return of moneys paid under them.

Judge Story says: “ The public policy of thus protecting ignorant and credulous persons from being the victims of secret contracts of this sort would seem to be as perfectly clear as any question of this nature well can be, and the surprise; is, not that the doctrine should have been established in a refined and enlightened country, but that its propriety should ever have been made matter of debate.” Story •supra, section 262. The ground upon which courts interfere in cases of this sort is not upon any notion of damage to the particular individual, but from considerations of public policy (id. sec. 261), that is to protect others by checking the vice, or, as Chief Justice Parsons, in Boynton v. Hubbard (7 Mass., 112), states it, “Marriage brokage bonds, which are not fraudulent on either party, are yet void, because they are a fraud on third persons, and a public mischief, as 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.” Willard, in his work on Equity Jurisprudence (at page 210), says: “Nor will the court only decree a marriage brokage bond to be delivered up, but a gratuity of fifty guineas, actually paid, to be refunded.” See, also, Smith v. Bruning (Part 1 of 2 Vern. Rep., 392).

Judge Story also holds that money paid upon marriage brokage contracts may be recovered back in equity. Story’s Eq. Jur., § 263. If equity may relieve against such contracts by requiring brokage bonds and conveyances to be canceled, courts of law may award money judgment against the marriage broker to the extent of the money wrongfully received and withheld by him. The right to recovery in either forum is the same, the remedy only different. If a plaintiff cannot by a common law action enforce a return of money received, because the contract is against public policy, then she can have no relief in a court of equity for the same reason. In the application of the principles of equity, the courts follow the rules of- the law, and it is only where the law is ineffectual to afford the peculiar relief demanded, that equity gives redress. While a common law court may give a money judgment it cannot declare void a marriage brokage bona or conveyance, and hence recourse to equity in such a case is necessary. A court of equity would, however, have no jurisdiction of the present action, which is of legal cognizance and properly brought in this court. Code, §§ 69, 315. It is exclusively for money. No equitable relief is sought and none needed.

■ Leake, in his Law on Contracts (p. 407) says: “Whilst an illegal agreement remains executory, the party who has paid money as the consideration of it may repudiate the agreement and reclaim the money,” and further on says: “ There are some cases where a person having paid money as the consideration for an illegal contract, which has been executed, is, nevertheless entitled to reclaim the money on the ground that he is not equally guilty {in pari delicto) with the other party to the illegal agreement, who has received the money.” The contract sued upon was executory, but. even if it had been fully executed, we think the plaintiff’s assignor was entitled to the return of her money, as the defendant acquired no title whatever to it. We think the plaintiff’s assignor was tricked by the defendant into the belief that he would procure for her the husband she wanted; that he has by improper influences obtained from her fifty dollars, which he.has no legal right to retain, and that the plaintiff is entitled to a judgment for the amount so withheld. Money and property received by matrimonial agents are, in legal effect, obtained by constructive fraud, trick and device, and when received, as in this case, from a poor, confiding and deluded woman, it would be almost & travesty on justice for a court to refuse to hear her complaint, and compel the wrong-doer to disgorge the fruits of his wrong.

Indeéd, the courts have gone so far in condemning the defendant’s nefarious business as to call marriage brokage contracts a sort of kidnapping into a state of conjugal servitude. Drury v. Hooke, 1 Vern., 412. The marriage broker is the kidnapper, his client the victim. To hold that she is in pari delicto with the kidnapper is a misapplication of the term. The relation of the parties is more like-that of the spider and the fly, as told in the old nursery rhyme.

We think the plaintiff ought to have had a verdict at the trial term for the return of her deposit, as so much money had been received to and for her use, and for this reason-the judgment directed in favor of the defendant must be reversed and a new trial ordered, with costs to abide the event.

Pitshke, J. (concurring).

—The complaint herein, as amended, states a cause óf action to recover fifty dollars which one Emily Guión (plaintiff’s assignor) deposited with defendant, the proprietor of a “Matrimonial Agency,” as a consideration for his services to work for her by introducing to her a number of gentlemen for the purpose of procuring her a husband satisfactory to her; and which amount was to be repaid unto her August 15, 1887, if at that time she was willing to give up all acquaintance with the gentlemen introduced. But if she should marry one of such gentlemen, an additional fifty dollars was due to the defendant. The arrangement was in writing, in form of a mutual due bill, setting forth the above terms.

On August 16 or 17, 1887, not having become suited, said Mrs. Guión demanded the fifty dollars from defendant; but the latter refused to return her the same, though she was willing to give up all acquaintances. The answer denied she or plaintiff was entitled to any recovery.

This is the whole issue before the court, so far as appears from the appeal book.

In the court below, the trial judge directed a verdict for the defendant, on the ground that the transaction was against public policy, and plaintiff could, therefore, not have a restoration of the said money, so placed with the defendant.

There is, of course, no element in this case of either fraud, deceit, imposition or misrepresentation, on defendant’s part, to induce said Emily Guión to enter into the contract and make said deposit, nor is it asserted that she was ignorant of the meaning of the arrangement and her position therein.

First. Mrs. Guión having parted with her money without consideration, it still belongs to her (Hoag v. Owen, 57 N. Y., 644), unless the illegality of the agreement in question prevents a recovery by her. And this is applicable to her assignee, the plaintiff.

It is beyond dispute that in cases of illegal agreement, courts neither aid the parties to enforce the same, nor, if already executed, afford relief to either party thereto, where the parties are in “pari delicto.” These two legal propositions are well established by the authorities. Therefore, Crawford v. Russell (62 Barb., 100), the only reported case in this state on the subject of marriage-brokage) was correctly decided, as it was an action on and to enforce a marriage-brokage contract, i. e., to recover the agreed compensation; and the broker was properly defeated. To same effect, that such contracts are not enforceable, Johnson v. Hunt, 81 Ky., 321.

Second. However, the present suit is different. It is not an action founded on the legal agreement and in affirmance thereof, where the object is to enforce the performance of the illegal contract, but the action was brought in disaffirmance of the contract; and secondly, as no “husband ” had been procured when this suit was begun, and the money then remained in defendant’s hands, the marriage-brokage agreement was then yet executory and unexecuted, and clearly the parties to the arrangement (through particeps criminis) were not in “pari delicto.” Defendant was the conductor of the objectionable “agency,” while Mrs. Emily Guión, instead of being a transgressor, was rather the victim— compared with the situation of the defendant in the affair, by reason of the mischievous consequences, and woes likely to befall her therefrom.

There is a plain distinction between executory and executed illegal contracts. Where money has been paid on an illegal contract which has been executed and both the parties are in pari delicto, neither of them can recover the money so paid; but if the contract (not malum 'in se) is executory and the party paying the money is desirous of rescinding the contract, he may do so and recover back' his money by action of assumpsit for money had and received, as the purpose is not to affirm and enforce the illegal contract but the action proceeds in disaffirmance of such contract, on the ground it is void, and seeks to prevent the defendant from retaining the benefit he has derived thereby. Utica Ins. Co. v. Kip, 8 Cow. R., 24 (citing Munt v. Stokes, 4 Term. Rep., 561, 564, Buller, J., “that where the original contract was not malum, in se, suit lies to recover the money back); Boynton v. Hubbard, 7 Mass., 118; Chitty on Cont’s, 657; so in Walker v. Chapman (cited in Lowry v. Burdieu, 2 Doug. R., 471), where a sum of money was paid to procure a place in the “ Customs ” and the place had not been procured, and the party who paid the money having brought suit to recover back, etc., Held, he should recover because the contract remained executory.

Third. In respect to illegal acts involving any moral delinquency or turpitude, all parties are deemed equally guilty, and courts then will not inquire into their relative guilt. But where the offense is merely malum prohibitum, and is in no respect immoral or malum in se, it is not against the policy of the law to inquire into the relative delinquency of the parties, and to administer justice between them, although both parties are wrong doers. Lowell v. Boston and L. R. R., 23 Pick., 24; Atlas Bank v. National Bank, 3 Metc., 581. Accordingly, a deposit under an illegal agreement, contrary to the statute, may be recovered back. White v. Franklin Bank (22 Pick., 181),. which is a case certainly analgous to the present suit.

Fourth. Where a party to an illegal transaction, though a particeps criminis, is not in “pari delicto,” he may have affirmative relief. Browning v. Morris, Cowp. R., 790, per Lord Mansfield (explaining also distinction between contracts malum in se, and those malum prohibitum merely).

If the parties to a contract or transaction, not malum in se, but simply malum prohibitum, are not equally guilty, courts afford relief to the less guilty party. To shield the more guilty party, and deprive the complainant of all remedy, it is essential not only that the latter be a particeps criminis, but he must be in “pari delicto ” with his adversary.

The authorities have clearly established that where there are degrees of wrong, courts can and do give relief against the more guilty party. Excise Comrs. v. Backus, 29 How. Pr., 39.

“Courts, both of law and equity, have held that two parties may concur in an illegal act, without being in all respects in pari delicto.” Osborn v. Williams, 18 Vesey, 379 (where a restoration and accounting was decreed).

The parties, though in delicto, must also stand in pari delicto, to prevent the restoration or refunding of the fruit of the transaction. ■

So in Ford v. Harrington (16 N.Y., 285),where the plaintiff conveyed to attorneys his lands for the purpose of defrauding his creditors, and though the transaction was illegal and intentionally fraudulent, and plaintiff participated in the unlawful scheme, held he was in delicto, but not in pari delicto, and he, therefore, could recover. To same effect Freelove v. Cole (41 Barb., 318), where the same doctrine was applied for the relief of a fraudulent grantor, conveying to defraud creditors.

To the like effect is Winter v. Kinney (1 N. Y., 365), where it was held, a case of deposit under illegal agreement with sheriff to let prisoner go at large, that the money could be recovered back from the depositary. Also, Jacques, v. Golightly, (2 Wm. Bl. R., 1073). , For the same reason, as defendant herein was the more guilty in the light of public policy, and Mrs. Emily Guión (though particeps criminis) was evidently not in pari delicto, but at most a possible or probable victim, the plaintiff in the present suit has, upon principle, a perfect right to reclaim the money passed under the agreement herein.

The distinction is this: there are illegal contracts where both parties are equally culpable, and those in which, although both have participated in the illegal transaction, the guilt rests mainly with one. Unless the parties are in pari delicto, as well as particeps criminis, the courts—although the contract be illegal—will afford relief where equity requires it in favor of the more innocent party. The cases where courts give relief to one of the parties on the ground of not being in pari delicto, form a class entirely distinct from the cases which rest on a disaffirmance of a contract before it is executed. And it is essential to both classes that the contract be merely malum prohibition; if malum in se, the courts will, in no case, interfere to relieve either party from any of its consequences. Tracy v. Talmage (14 N.Y., 162, 181.)

The foregoing statement of the law in 14 N. Y., 181, requires a refunding, unto the plaintiff herein, of the money sued for in the present case, for two reasons, because plaintiff disaffirms herein the agreement before it was wholly executed, and because it is but malum prohibitum, and Mrs. Guión was not in pari delicto.

On the same doctrine of not in pari delicto ”—in cases of money lost by or deposited on an illegal wager (2 Comyn on Oontracts, 309; 6 Barb., 658), or expended in a lottery-scheme, or overpaid by way of usury, a restoration thereof through an action for money improperly “ had and received,” was always allowed for the protection of society, because the law regarded the payer as the principal offender —independent of and previous to any statutory provision authorizing such a recovery. So, the usurious interest on a loan-contract could be recovered back, independently of and before the statute, because parties not in pari delicto. Wheaton v. Hibbard, 20 Johns. Rep., 290, and, see 16 N. Y., 290; Bosanquet v. Dashwood, Cas. Tem. Talb., 38.

Again, in Mount v. Waite (7 Johns. Rep., 440), plaintiff was allowed to recover back a premium paid under a foreign lottery-scheme, against which there was no statute; and Kent, Ch. J. (who delivered opinion of court on the appeal), placed it on the ground, that as no statute was violated and the contract was not malum, in se, and the plaintiff (not being in delicto at all), was not “ in pari delicto,” said premium must be refunded. Recognized in 14 N. Y., 186 (supra.)

Fifth. From the foregoing discussion, it necessarily follows, that contracts for procuring a “marriage” {malum, prohibitum, -from their general disastrous consequences), are relievable against, and payments thereunder can be recovered back. That such is the law in “marriage-brocage cases,” has been long established in England, and prior to our declaration of independence, by the following authorities: Hall v. Potter (3 Lev., 411), where T. gave bond to P. to pay him £500, within three months after he should be married to the Lady Ogle, etc., and a bill in chancery was brought by T.’s executors, suggesting that the contract was void, as being for procuring marriage, though no circumvention or fraud to induce the contract appeared in the case, and there was nothing but advice, and the master of the rolls dismissed plaintiff’s bill; whereupon, on appeal to house of lords, it was held, all such contracts are of dangerous consequence, and the decree of dismissal below was reversed, and the brocage-bond decreed to be canceled.

In Smith v. Bruning (2 Vern., 392, and S. C., in Abr. Eq. Cases, 89, 90, as Goldsmith v. Bruning), where a note was given for £-, to A. to use her endeavors to procure and bring about a certain match, etc., the note was set aside, and the money already actually paid thereunder was ordered to be refunded.

To same effect, Stribblehill v. Brett (2 Vern., 446, and Chanc. Prec., 165). Again, Keat v. Allen (2 Vern., 588, and Chanc. Prec., 267 Anon), where C. courted B., who had certain “personalty,” and to get consent of A. (Lady B.’s father), 0. gave to A., the father, a bond to repay £200, if the wife should die without issue, or the issue died before respectively eighteen,—held, per Lord Cowper, it is in nature of a brocage-bond, and - decreed that it be delivered up and defendant A. to Refund what, under the bond, had been paid him for interest.

Sixth. The form in which the present suit was brought was proper. Where money has been received, which, in equity, belonged to another, an action at law for “money had and received” will lie for its recovery. Cope v. Wheeler, 41 N. Y., 308.

The appropriate remedy in this court for plaintiff Duval, to recover back the fifty dollars in suit herein, was accordingly an action for money had and received, which is an action for money only. Sections 315, 3339, Code Civ. Pro.

On the whole, I believe it is necessary for the better maintenance of the law, to permit this action—for no man will readily venture to take, if he knows he is liable to refund. To decide that this action cannot be successfully maintained, would be to secure to defendant the fruit of an illegal transaction, at the expense of the more innocent party. To bar a recovery herein would be establishing a dangerous precedent, and would encourage the institution of such “matrimonial agencies” and the getting such contracts furishing them moneys paid or deposited, while they on their side incur no liability or risk—as their unlawful services cannot be “demanded,” nor could they be sued in damages for non-performance of the illegal contract.

A new trial should, therefore, be granted; on such new trial, interest will, however, not be recoverable, inasmuch as.the money was paid without any extortion or imposition to get it, and Mrs. Guión joined in the illegal transaction. Pease v. Barber, 3 Caines R., 266.

For the reasons above given, the judgment directed in favor of defendant must be reversed, and a new trial orderéd, with costs to abide the event.

McGowk, J. (dissenting).

—That the contract entered into between the parties, was one known and recognized in law as a contract in violation of public policy, if not conceded herein, seems to me to be too clear to require the citation of any authorities.

In Parsons on Contracts, (7th ed.), vol. 1, 74, it is stated that “There are certain contracts spoken of in English books, as “Marriage brokage, or brokage contracts.”

. They are contracts for payment of money, or some other compensation, for the procuring a marriage; and they are held to be void both in law and equity as against policy and morality.”

It is not claimed that any' deceit, fraud, false pretenses, or misrepresentations, were made by the defendant, to induce Mrs Guión to deposit with him the sum of fifty dollars sued for; nor does it appear, nor is it claimed, that she was ignorant of the position she assumed in entering into the contract, or of the illegality thereof, and she thus was with the defendant in pari delicto.

Such being the case, she must not complain, if what she may consider a harsh application of the law is applied.

In Crawford v. Russell (62 Barb., 92) Judge Potter in his opinion at page 100, says, “If then we are right, that the doctrine is well establised, that such agreements (referring to marriage, brokage contracts) are void as against public policy; all advances of money and services performed, must fah with the agreement itself.”

The consideration of all contracts must be legal, and all those which contravene a general policy of the common law and the provisions of any statute are void; and courts will neither aid the parties to enforce them, nor, if executed, afford relief, by restoring the parties to the condition before performance, and the courts will not aid either party in enforcing an illegal executory contract; nor, if executed, will they aid either party in setting it aside or in recovering back what has passed under it. Nellis v. Clark, 4 Hill, 424.

In this case Chancellor Walworth, in his opinion, says: “Where both parties are equally offenders against the laws of the country or the general principle of public policy, or the laws of decency or morality, portior est conditio defendentes; not because the defendant is more favored where both are equally criminals, but because the plaintiff is not permitted to approach the altar of justice with unclean hands.

In the case at bar, the defendant agreed to pay back fifty dollars deposited with him upon a certain contingency set forth in his due bill or agreement. The payment of the fifty dollars remained unexecutory, and the court will not compel the contractor to perform his engagements. See Nellis v. Clark, above cited.

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 principal, 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 & Hawley v. Truax, 21 Barb., 361; Schermerhorn v. Talman, 14 N. Y., 94, 102, 141; Tracy v. Talmage, 14 id., 162, 181; Pratt and others v. Adams, 7 Paige, 615; Barton and others v. The Port Jackson and Union Falls Plank R. Co., 17 Barb., 397.

Money paid upon an illegal contract, both parties being in pan delicto, cannot be recovered back again. Burt v. Place, 6 Cowen, 431.

Nor can money be recovered back which has been paid in part performance of an illegal contract, the parties being in pari delicto. Knowlton v. The Congress and Empire Spring Co., 57 N. Y., 518.

It is only where an illegal contract has been fully executed and money paid thereunder remains in the hands of a mere depositor, who holds the money for the use of one-of the parties to the contract, that an action brought to recover the money so held will be sustained. Woodworth v. Bennett, 43 N. Y., 273.

Contracts illegal at common law as being contrary to public policy are such as injuriously affect or subvert-the public interest, such contracts as by their terms or contemplated manners of performance must work some mischief affecting a body politic.

All contracts or agreements which have for their object-anything which is either repugnant to justice or in violation of religion, or public decency or order.

The cases where the doctrine of public policy has been applied most commonly, are in respect to contracts made-in restraint of trade, of marriage, those which affect injurr ously the legislation or administration of justice of the state, wager contracts, and contracts affecting the public morals.

The adjudications in this class of cases proceed on the grounds of some public injury, which the performance of the stipulations of the parties would be likely to produce. The aid of the law is not withdrawn 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.

In all cases where a recovery has been allowed for money paid or deposited on an illegal contract, such recovery has-been authorized by statute laws.

It has always been the policy of the courts to frown upon and discountenance contracts like the one in question; and the courts have always refused to lend their aid, either /it law or in equity, in relieving either of the parties from the effect thereof, or to assist them in recovering-back money paid thereunder; and it has always been their policy to leave the parties in the position in which they have voluntarily placed themselves, as a penalty • for their illegal acts.

I do not find in the briefs submitted herein any case cited wherein the courts of this state have allowed-a recovery of money paid, or deposited under a marriage brokage contract, or under any illegal contract, except in cases where the statute law has provided for such recovery; nor have I been able to find any case reported, wherein the courts have departed from the policy above mentioned, and to allow a recovery herein would, it seems to me, be establishing a dangerous precedent, and would encourage the making of such contracts, should a party thereto, who had paid or deposited money, and who might feel aggrieved and disappointed because the results of such contract did not come up to his expectations, find that the only risk he incurred would be possibly a loss of time and services, while the money he had invested therein would not be jeopardized, but could be recovered back.

A new trial should not be granted, and I dissent from the decision of a majority of the court reversing the judgment.  