Horticultural Development Co. v. Schneider

• Decision Date: 22 December 1932
• Docket Number: 1 Div. 742.
• Citation: 225 Ala. 667,145 So. 135
• Parties: HORTICULTURAL DEVELOPMENT CO. ET AL. v. SCHNEIDER.
• Court: Alabama Supreme Court

145 So. 135

225 Ala. 667

HORTICULTURAL DEVELOPMENT CO. ET AL. v. SCHNEIDER.

1 Div. 742.

Supreme Court of Alabama

December 22, 1932

Appeal from Circuit Court, Mobile County; J. Blocker Thornton Judge.

BIll for rescission and cancellation of a contract by E. J Schneider against the Horticultural Development Company, G H. Krause, H. N. Kunz, and Fred G. Rapp. From a decree overruling a demurrer to the bill, respondents appeal.

Affirmed.

Gordon Edington & Leigh, of Mobile, for appellants.

W. J. Young, of Mobile, for appellee.

GARDNER J.

The bill is to be construed as one for rescission and cancellation of a contract for the purchase of real estate upon the ground of fraud in its procurement, and for relief incident thereto, including a recovery of the purchase money paid. 39 Cyc. pp. 1426-7; Orendorff v. Tallman, 90 Ala. 441, 7 So. 821; Garner Neville & Co. v. Leverett, 32 Ala. 410.

The contract here involved has been declared void as against public policy (Horticultural Development Co. v. Lark, 224 Ala. 193, 139 So. 229), and the principal insistence here urged against the bill is that it appears the parties are in pari delicto, in which event the law leaves them where it finds them, and will grant no relief; citing Gill Printing Co. v. Goodman, 224 Ala. 97, 139 So. 250; Lunsford v. First National Bank, 224 Ala. 679, 141 So. 673.

Complainant insists the foregoing principle is inapplicable to a contract of this character (13 Corpus Juris 505), but this question may be left to one side and undetermined. This for the reason the relief here sought is based upon defendants' fraudulent conduct whereby complainant was induced, without reading it, to enter into the contract, and the authorities are in accord that under such circumstances the principle sought to be invoked is without application.

"Where parties to a contract against public policy or otherwise illegal, are not in pari delicto, or equally guilty, which they may not be, and where public policy is considered as advanced by allowing either, or at least the more excusable of the two, to sue for relief against the transaction, relief is given to him. The cases of this character are generally where the party asking to be relieved from the effect of an illegal agreement was induced to enter into the same by means of fraud. Here he is not regarded as being in pari delicto with the other party, and the court may relieve him." 13 Corpus Juris 498. And such in effect was the holding of this court in Shipman v. Furniss, 69...