Phillip Levy & Co v. Davis

• Decision Date: 15 January 1914
• Citation: 80 S.E. 791,115 Va. 834
• Court: Virginia Supreme Court
• Parties: PHILLIP LEVY & CO. v. DAVIS.

80 S.E. 791

115 Va. 834

PHILLIP LEVY & CO.

v.DAVIS.

Supreme Court of Appeals of Virginia.

Jan. 15, 1914.

1. Contracts (§ 138*)—Legality or Object-Relief — Enforcement of Contract in General.

The law will leave all equally guilty of an illegal or immoral transaction where it finds them, and will not lend its aid to rescind or enforce such a contract while it is executory.

[Ed. Note.—For other cases, see Contracts, Cent. Dig. §§ 681-700; Dec. Dig. § 138.*]

2. Contracts (§ 138*)—Legality of Object-Recovery of Consideration.

As to parties equally guilty of an illegal or immoral executed agreement, the law will not lend its aid to recover the consideration parted with thereunder.

[Ed. Note.—For other cases, see Contracts, Cent. Dig. §§ 681-700; Dec. Dig. § 138.*]

3. Contracts (§ 138*)—Legality—Immorality—Relief.

Regardless of the contract rights of the parties or of the interest in the goods intended to be conferred by the contract, and in view of Code 1904, § 3790, making the keeping of a disorderly house a penal offense, plaintiff, who sold and delivered furniture to defendant for the specific purpose of placing it and using it in a house of prostitution, the income from which, as plaintiff knew, was defendant's only means of paying therefor, could not maintain detinue, or, in the alternative, recover the value of the property.

[Ed. Note.—For other cases, see Contracts, Cent. Dig. §§ 681-700; Dec. Dig. § 138.*]

4. Contracts (§ 138*)—Legality — Relief Independent of Illegality.

In such action, where the illegality of the contract appeared either in the pleadings or in the evidence, plaintiff could not recover on the ground that he could make out his case without disclosing the illegal character of the contract.

[Ed. Note.—For other cases, see Contracts, Cent. Dig. §§ 681-700; Dec. Dig. § 138.*]

5. Contracts (§ 138*)—Legality—Recovery.

When the evidence shows mutuality of interest on the part of the seller and buyer with respect to the illegal use to be made of the property, there can be no recovery.

[Ed. Note.—For other cases, see Contracts, Cent. Dig. §§ 681-700; Dec. Dig. § 138.*]

6. Appeal and Error (§ 882*)—Party Entitled to Allege Error — Party Inviting Error.

A party who invites error in an instruction is estopped to question it and will not be heard to complain of having misled the court, and it is immaterial that such party ask for other instructions, stating a different rule, which were refused and the ruling excepted to.

[Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. §§ 3591-3610; Dec. Dig. § 882.*]

7. Action (§ 35*) — Statutory Remedies — "Cumulative Remedy."

Code 1904, § 2462, subd. 2, providing that all reservations of title to goods sold, whether recorded or not, may be enforced upon the procedure prescribed, and that the court shall ren-tier such judgment as may be required, does not indicate a legislative purpose to abolish pre-existing remedies in that class of cases, so as to make the remedy thereunder exclusive, and hence the remedy thereunder is cumulative and the seller may elect (citing Words and Phrases, vol. 2, p. 1785).

[Ed. Note.—For other cases, see Action, Cent. Dig. §§ 273-294; Dec. Dig. § 35.*]

Error to Law and Chancery Court of City of Norfolk.

Action by Phillip Levy & Company against Gertrude Davis. Judgment for defendant, and plaintiff brings error. Affirmed.

N. T. Green and Moe Levy, both of Norfolk, for plaintiff in error.

O. L. Shackleford and W. L. Williams, both of Norfolk, for defendant in error.

WHITTLE, J. This is an action of detinue to recover the possession of certain furniture and other household goods sold and delivered by the plaintiffs in error to the defendant in error, or, if a recovery in specie should prove impracticable, to recover, in the alternative, the fair value of the property, together, in either case, with damages for the detention.

The written contract of sale contains stipulations that "the said parties of the first part do not part with, nor does said party of the second part acquire, any title to said articles until they are fully paid for, " and "the said party of the second part agrees not to remove the said articles from the said premises or sell, or attempt to sell, or otherwise dispose of the said articles without the consent of the said parties of the first part."

The case was tried on a plea of the general issue, and resulted in a verdict and judgment for the defendant. There is no conflict in the evidence. The goods were bought by the defendant, who kept a house of prostitution in the city of Norfolk, on the suggestion and at the solicitation of Harry Levy, one of the partners, for the specific purpose of being used in her business, and with knowledge on his part of the character of the business and that her only means of payment was the income to be derived therefrom. It furthermore appears that the partner referred to instigated the defendant to enlarge her business and profits by keeping a house full of girls, especially to meet the demands of sailors of the battleship fleet, which was expected at Norfolk on its return from abroad.

The prevailing doctrine with respect to transactions of this class is well stated in 2 Elliott on Contracts, § 1064: "As a general rule the law will leave all equally guilty of an illegal or immoral transaction where it finds them, and will neither lend its aid to enforce the contract while executory nor to rescind it and recover the consideration parted with when executed. 'It is a well-settled principle of law that the courts will not aid a party to enforce an agreement made in furtherance of objects forbidden by the statute, or by common law, or general policy of law, or to recover damages for its breach, or when the agreement has been executed in whole or in part by payment of money to recover it back.' "

Again, in section 1094, it is said: "It is also true as a general rule that if the parties are in pari delicto and equally at fault and one of them has performed the illegal agreement in whole or in part, he cannot recover from the other party that which he has parted with under the contract. The law will leave the parties where it finds them. The rule is the same in equity."

In this instance we are dealing with a contract in aid of a business which the statute denounces as a crime punishable by fine and imprisonment. Va. Code, § 3790. And from an ethical standpoint there is no difference in degree of turpitude between the parties, as each knowingly was to participate in the fruits of the crime.

We do not understand the general statement of the law, as laid down by Elliott, to be controverted; at all events, it is sustained by the overwhelming weight of authority both English and American. The effort here is made, however, to bring the case within the influence of alleged qualifications of the rule: (1) That such defense will not be suffered to invest a party with greater property rights in the subject-matter than are conferred by the illegal contract; and (2) that, if the plaintiffs can make out their case without disclosing the illegal character of the contract, the defendant will not be permitted to set up such illegality as a defense, and there may still be a recovery.

1. The result of the application of the first proposition would practically be to abrogate the rule which avoids such contracts. In its essence the doctrine is not founded upon the interests or supposed contractual rights of the parties. All such considerations are subordinated to the common weal, and in the eye of the law the contract confers no rights upon the parties. If either derives advantage from the transaction, it results from the act of the parties and not of the law. The law simply leaves the litigants in the plight in which they have seen fit to place themselves without undertaking to balance benefits or burdens.

In denying a recovery in the instant case, it was not necessary for the court to consider the quantity of interest in the goods intended to be conferred by the contract upon the buyer. It was sufficient for the court to know that possession of the property had been delivered by the plaintiffs to the defendant, and that in order to recover it the sellers were forced to rely upon a contract condemned by the law as opposed to the moral welfare of society.

2. The second contention, that plaintiffs were entitled to recover because they could make out their case without disclosing the illegal character of their contract, in the circumstances of the particular case, is not...