Summary
In Morgan Munitions Supply Co. v. Studebaker Corp. (226 N.Y. 94, 99) we likewise cited the Sirkin case for the proposition that "a contract procured by the commission of a crime is unenforceable even if executed" (emphasis supplied).
Summary of this case from McConnell v. Commonwealth Pic. Corp.Opinion
Argued February 24, 1919
Decided March 21, 1919
James A. O'Gorman, George Gordon Battle and Leon N. Futter for appellant. Alfred Gregory, Lewis L. Delafield and E.J. Dimock for respondent.
The appeal is from an order overruling demurrers to the new matter set up as defenses to the cause of action set forth in the complaint.
The plaintiff in its pleading alleges that in the month of September, 1914, at New York city, the defendant entered into an agreement with one Hill G. Morgan authorizing and requesting him to negotiate sales with and obtain orders from the governments engaged in the war, and promised to pay him a commission of 5% upon the purchase price of all the goods sold by the defendant as the result of his efforts. It further alleges that on or about the 15th day of November, 1914, as the result of the efforts of said Hill G. Morgan, the defendant sold to the government of Great Britain artillery harness and saddles and received the sum of $16,500,000 in payment, of which Hill G. Morgan's share according to his contract was $825,000. Demand is made for the amount. This action is brought by the plaintiff as the assignee of the said Hill G. Morgan.
The supplemental answer sets up two defenses, the first showing that no contract was made, or else that the contract made cannot be enforced for illegality, and the second alleging facts as and for a rescission of any contract of employment.
As to the first defense. This states that Hill G. Morgan was a retired colonel in the English army, of known and distinguished reputation, having served with Lord Kitchener in Egypt and South Africa and at the time in question was the administrative member of the British war office for the supply of forage to the troops over sea and home. Francis Curtis Morgan, it is alleged, was a brother of Hill G. Morgan and illegally impersonated him, by representing in writing to the defendant that he was Hill G. Morgan and could, by his connections stated, secure the contracts for the purchase of supplies. The answer then states that these representations were made by Francis Curtis Morgan to obtain employment from the defendant, that the defendant relied upon them in employing Francis Curtis Morgan in the name of and as Hill G. Morgan. In substance the answer is that the contract set forth in the pleading was not made with Hill G. Morgan but with one Francis Curtis Morgan, posing and impersonating Hill G. Morgan.
Two legal conclusions follow from this defense.
One. That no such contract was made as the plaintiff alleges, for if the facts of the defense be true the plaintiff could not recover upon a contract made apparently and supposedly but not in fact with Hill G. Morgan. If the defendant in form contracted with Hill G. Morgan when there was no Hill G. Morgan in the transaction but somebody else who falsely assumed his name and honors there would be no contract. This is not a matter of mere name; it embodies the identity of a living person whom the defendant was led to believe it was negotiating with. Any other name and person will not do. We say nothing about quantum meruit as it is not here before us.
It will be noted also that there is no agency express or implied in the answer.
Some of my associates are of the opinion that this defense was unnecessary as under the general denial the defendant could prove that there was no contract with Hill G. Morgan as stated in the complaint. Even if this be so the matter set forth is a good defense and does not submit to demurrer. Matter which would be sufficient under a general denial loses none of its efficacy by being pleaded as a defense.
Two. The facts pleaded in this defense would bar Francis Curtis Morgan from recovering upon the contract in his own name or the name of Hill G. Morgan, because of his violation of section 939 of the Penal Law, which reads:
"A person who obtains employment * * * by any false statement in writing, as to his name, residence, previous employment or qualification; * * * is guilty of a misdemeanor."
As held by the Appellate Division in this case a contract procured by the commission of a crime is unenforceable even if executed (citing Sirkin v. Fourteenth Street Store, 124 App. Div. 384). The illegality does not consist in the approach to the contract as stated in Cody v. Dempsey ( 86 App. Div. 335), as Morgan could not establish his case upon the contract without proving its illegal nature. No person can maintain an action to which he must trace his title through his own breach of the law. ( Hall v. Corcoran, 107 Mass. 251, 260.)
The leading case upon this subject is Continental Wall Paper Company v. Voight Sons Company ( 212 U.S. 227), where it was held that a vendor could not recover for the price of wall paper sold and delivered, as to enforce the claim would be to aid in the execution of an agreement in restraint of trade.
In proving the contract it would be necessary for the plaintiff, if the matter set forth in this defense be true, to show that its assignor violated the Penal Law, and the courts in enforcing the contract would be using the violation of one law to sustain another. The law of contracts is no more vital than the Penal Law, as there are no degrees in legal obligations.
As to the second defense, however, we think the demurrer should have been sustained, as the matter is neither necessary nor sufficient for a rescission. The facts pleaded are the same as those set forth in the first defense with the additional statement that the services of Francis Curtis Morgan were of no value to the defendant and that the defense is interposed "As and for a rescission of any contract of employment made between it and said Francis Curtis Morgan."
What has been said above may be here repeated as to this defense. The complaint alleges no contract with Francis Curtis Morgan. The only ground for rescission is that the person the defendant contracted with falsely represented himself to be Colonel Morgan of the British army; that the agreement was intended for the colonel not an imposter. If this be so there was no contract as heretofore stated. The facts pleaded for a rescission go further and show that there could be no contract to be rescinded.
The pleading, therefore, was demurrable in this respect.
This conclusion renders it unnecessary for us to consider whether the defendant under these circumstances should have pleaded the rescission as a defense as matter of law or have set it forth as a counterclaim in equity, asking for rescission. ( Gould v. Cayuga County National Bank, 86 N.Y. 75, 79, 81, 84.)
It might be well, however, to mention that in the case of Schank v. Schuchman ( 212 N.Y. 352) the plaintiff was suing for a sum of money — excessive and illegal charges — whereas in a case where the plaintiff asks for a rescission and desires to return the value of services which cannot be determined without judicial aid he generally must resort to a court of equity for relief.
For the reasons above stated we affirm so much of the Appellate Division's order as overrules the demurrer to the first defense, with leave to withdraw said demurrer, and reverse so much of the order as overrules the demurrer to the second defense. We sustain the demurrer to the second defense, without costs in this court or in the Appellate Division to either party. The first question certified should be answered in the affirmative, and the second in the negative.
HISCOCK, Ch. J., CHASE, COLLIN, CUDDEBACK, HOGAN and McLAUGHLIN, JJ., concur.
Ordered accordingly.