Lowenburg v. Klein
Decision Date | 04 April 1921 |
Docket Number | 21683 |
Citation | 125 Miss. 284,87 So. 653 |
Court | Mississippi Supreme Court |
Parties | LOWENBURG v. KLEIN et al |
APPEAL from chancery court of Warren county, HON. E. N. THOMAS Chancellor.
Suit by Joseph Lowenburg against Joseph Klein and others for an injunction. From a decree dissolving a preliminary injunction and dismissing the bill, plaintiff appeals. Affirmed in part and reversed in part.
Decree affirmed in part, and reversed in part.
Anderson, Vollor & Kelly, for appellant.
While this action is in form asking for affirmative relief, it is in nature strictly a defensive one.
Mr Pomeroy, in the 2nd Volume of the Fourth Edition of his great work on Equity Jurisdiction, in discussing this whole question, applicable not only to the proposition in hand, but to several of the others, uses this language, under the head of In pari delicto--generad rules.-- Section 940, pages 1992 to 1997.
2. The contract involved in this proceeding, while against public policy and illegal, is executory and not executed, and, as already seen in the quotation from Mr. Pomeroy, supra, the rule is very different in the two cases. The rule as to executory contracts, where the parties stand in pari delicto is, that while they cannot be enforced either by specific performance or by an action for damages on account of the breach, either party may stop the consummation of the contract on his part by an action to rescind and recover back what may have been paid by him in consummation of the transaction. Especially is this true when the proceeding, as the one at bar, is to stop the payment of the money, or the cancellation of a check given in pursuance of the illegal transaction. 2 Pomeroy (4 Ed.), secs. 940 & 941; Spring Company v. Knowlton, 103 U.S. , 26 L.Ed. 347; 3 Comyn on Contracts, 361; 2 Parsons on Contracts, page 746; Block v. Darling, 140 U.S. , 35 L.Ed. 476; Bernhard v. Taylor (Ore.) 31 P. 968. Citing many authorities in suppore of the doctrine. See, also, Hazard v. Coyle (R. I.), 48 A. 442, 443 & 444; Day v. Lown, 51 Iowa 364, 1 N.W. 786; Cleveland, etc., Ry. Co. v. Hirsch (C. C. A.), 204 F. 848-858; 2 Words & Phrases (2 Series), pp. 990, 991; McCutcheon v. Capsule Co., 145 U.S. 470, 36 L.Ed. 748.
The rule is thus announced in 23 Cyc., page 343, paragraph D: "Although an executory contract for the illegal sale of liquor may be rescinded and partial payments reclaimed, yet if the contract had been fully executed, no action will lie, at common law, to recover back the price or value of the liquor. " This is practically a "goose" case, and covers the facts in this case like a blanket.
3. The real and controlling object of the section was to prevent the bank's paying the illegal check given by complainant to Klein. As observed under the head of this proposition, supra, there was never any illegal relation existing between Lowenburg and the bank. The bank had his money on deposit and he had a perfect right to demand that money or stop the payment of this illegal check, drawn on his funds in the bank of Klein. Bernhard v. Taylor, supra, is ample authority to support this proposition. 11 Rose's Notes (Revised Edition), pp. 214, 215, & 216, 3 L. R. A., 679, sec, 208; Drinkall v. Movius State Bank, (N. D.) 57 L. R. A. 341 and Notes.
4. Under the facts the maxim of in pari delicto did not obtain. Only an attempt had been made on the part of complainant to violate the law; but it is fair to say that had Klein complied with his agreement and delivered the whisky to complainant, the law would have been violated, but in all probability the courts would never have known anything about the transaction. However, this was not done. Klein refused to deliver the liquor and attempted, and still is attempting, at the same time, to hold the check and collect the one thousand five hundred dollars without giving a penny worth of anything for it. The most unconscionable proposition, we submit, that could be brought before a court of justice; however as stated, the relation of particeps criminis between the two parties was never consummated, and the maxim of in pari delicto therefore, cannot apply, because the facts show that the complainant never occupied that relation in any particular to Klein. His effort now is to stop the payment of his check to Klein, or his assigns, and get his money back out of the bank where it was legally deposited.
5. The decision of the court while attempting to apply the rule of leaving the parties where they had put themselves, and refusing to grant relief to either, in this decree entirely abrogates the rule, for it in fact gave Klein all the relief he could possibly expect or hope for. It not only allowed him to hold the check and thereby give him the authority to present and collect it, but it also gave him damages in the sum of one hundred fifty dollars for the wrongful suing out of the injunction. Even if the rule applies which the court attempted to enforce, all it could have done under the law would be to deny the recovery and dismiss the case, and thereby leave the parties exactly where they were before the suit was brought If Klein had any advantage by virtue of the transaction, under that view of the case he could retain it, but he had no right to anything more than that. The effect of the decree, we submit, is not only to aid Klein in stealing and collecting the check for one thousand five hundred dollars but is also to award him a premium of one hundred fifty dollars to aid and assist him in that purpose and design. Such a proceeding and its outcome cannot and will not be sanctioned by a court of conscience.
6. This proposition is simply a corollary of the 5th. That is, the court had no right to grant Klein an affirmative decree by awarding him damages to the amount of one hundred fifty dollars or any other sum, for the wrongful suing out of the injunction, and thereby giving him the right of execution to collect the same. This, we submit, in any view of the case, was reversible error.
The case relied on by counsel in the court below was that of Woodson v. Hopkins, 85 Miss. 171. The court is doubtless well acquainted with this case, as it was one of some notoriety at the time it was decided. Judge WHITFIELD, of the supreme bench arose to the heights of his great and brilliant intellect and legal attainment when he delivered this opinion. The real decision in the case, however, is summed up in the syllabus, although the opinion is very lengthy. The syllabus is as follows:
We, therefore, ask the court to reverse the decision and grant a decree here perpetuating the injunction, cancelling the check, and giving appellant the right to go to the bank and get his money if he so desires.
Brunini & Hirsch, for appellee.
By sub-division four of appellant's brief, on page 13 appellant advances this proposition: "Under the facts the maxim of in pari delicto did not obtain. Only an attempt had been made on the part of complaina...
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