Duval v. Wellman

• Decision Date: 31 January 1891
• Citation: 26 N.E. 343,124 N.Y. 156
• Parties: DUVAL v. WELLMAN.
• Court: New York Supreme Court

124 N.Y. 156

26 N.E. 343

DUVAL

v.WELLMAN.

Supreme Court, New York County, New York.

January, 1891.

Appeal from an order of the General Term 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 N. Y. city court held that plaintiff could not recover (15 State Rep. 384). The general term held the contrary on grounds similar to those stated in the following opinion of the court of appeals (15 State Rep. 404).

The N. Y. common pleas, at general term, on appeal reversed the decision in plaintiff's favor, on the ground that plaintiff was in pari delicto (16 State Rep. 607). Further facts appear in the opinion.

William H. Mundy, for appellant.

R. W. Newhall, for respondent.

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 confine 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. Guion, 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 $5. That she was introduced to thirty or forty gentlemen, but found none whom she was willing to accept as a husband, and that in June, 1887, for the purpose of stimulating the defendant's efforts in her behalf, she paid him $50, whereupon there was executed the following instrument:

“June 2d, 1887.

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

+------------------------+
                ¦(Signed)¦H. B. WELLMAN. ¦
                +--------+---------------¦
                ¦        ¦E. GUION.”     ¦
                +------------------------+
                

In August, 1887, Mrs. Guion, 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, §§ 260-264; 2 Pomeroy Jurisprudence, § 931; Willard's Jurisprudence, § 211; Bacon's Abridgement, title Marriage and Divorce; D. Fonblanque's Eq. ch. 1, § 10; Boynton v. Hubbard, 7 Mass. 112;Crawford v. Russell, 62 Barb. 92).

Judge STORY, after disscussing 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 of the weaker party, and especially 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 of 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 executory, 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 dolo malo non oritur actio is of universal application.

This subject received very full consideration in the case of Tracy v. Tallmadge (14 N. Y. 162), and it was there said that unless the parties are in pari delicto, 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....