John A. K. Duval, Respondent, against Horace B. Wellman, Appellant

John A. K. Duval, Respondent, against Horace B. Wellman, Appellant. (Decided May 18th, 1888.) Plaintiff’s assignor voluntarily paid to defendant, the manager of a matrimonial bureau, a sum of money as consideration for defendant’s introducing to her some one she would be willing to marry, the agreement being that such sum should be returned to her at a certain time, if at that time she should be willing to give up all acquaintance with men who were introduced by defendant; or in case she married a man so introduced, she was to pay an additional sum to defendant. Held. that such contract was void as against public policy, and, both parties being in pari delicto, plaintiff could not recover the money paid thereunder. Appeal from an order of the General Term of the City Court of New York reversing an order of that court which denied a motion for a new trial and granting a new trial of the action. The facts are stated in the opinion. R. W. Newhall, for appellant. William H. Mundy, for respondent. [MAJORITY — Bookstaver, J. —] Bookstaver, J. — The pleadings in the action are not made a part of the case. But from the case as made, it appears that plaintiff’s assignor, Mrs. E. Guión, became a patron of defendant’s matrimonial bureau, in June, 1886,- and deposited with him $5 registration fee, in consideration of his introducing her to some one whom she would he willing to marry, and which defendant promised to return to her upon a certain contingency; and that Mrs. Guión continued such patron until August 15th, 1887, during which time she was introduced by defendant to 30 or 40 men. None of them suited her. On June 2d, 1887, she went to defendant’s, apparently without solicitation on his part, and told him she was aware that people worked harder the more money they received; and thereupon voluntarily deposited with him $50, for which defendant gave her the following paper: “ June 2d, 1887. “ Due Mrs. Guión from Mr. Wellman fifty dollars ($50) August 15th, 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. Guión marry the gentleman whom we introduce her to, an addition fifty dollars ($50) is due Mr. Wellman from Mrs. Guión. (Signed) “ H. B. Wbllmajst, “E. Gdion.” During the eighteen months she was defendant’s patron, both he and his wife acted in a perfectly honorable way towards her, as far as she knew at the time. On the 16th or 17th of August, 1887, Mrs. Guión, not having become suited, demanded back the $50, and defendant refused to return it; whereupon her assignor commenced this action. These facts and others, not now necessary to state, appearing on the trial, the judge directed the jury to find a verdict in favor of the defendant, upon the ground that the contract was void, as against public policy, and the money deposited could not be recovered back. A motion was made for a new trial, and denied; from which an appeal was taken to the General Term of that court; on which appeal the order denying a new trial was reversed, and a new trial ordered. From this last order the present appeal was taken to this court. The attention given to this case in the court below, and the very elaborate discussion of the principles of law governing it, by the judges of that court, have greatly facilitated us in arriving at a conclusion. It is the unanimous opinion of these judges, that the contract in question is void, as against public policy; they also agree that if the parties are in pari delicto, there can be no recovery. They differ only as^to whether the parties to the contract are, in fact, equally guilty, and, if not, whether an action at law may be maintained, to recover back the money. On behalf of the plaintiff, it is urged that Mrs. Guión is “a poor, confiding, and deluded woman;” that she was “ tricked by the defendant into the belief that he would get for her the husband she wanted; ” that she was induced by improper influences to pay lfim the $50; that this was obtained from her “ by trick and device,” and a “ species of constructive fraud; ” and it is even claimed that the defendant, in making the contract in question, engaged in “ a sort of kidnapping [of Mrs. GMon] into a state of conjugal servitude.” To discover any of these facts m the evidence one must read between the lines, or they must be inferred from the nefarious nature of the busmess. From the evidence it appears that Mrs. Guión must have been of full age, or she could not have assigned her claim. She had been married before; and, as far as disclosed, labored under no legal disability. She had been a patron" of defendant’s establishment for more than a year before she made the contract. She, and not the defendant, proposed making the contract. There is no evidence in the case of any “improper influence,” deceit, fraud, false pretenses, or misrepresentations on the part of the defendant, wMch induced her to pay Mm the money. On the contrary, she says the defendant “ acted in a perfectly honorable way toward her.” Apparently, she was just as free to act and as capable of acting as the defendant, as is shown by the fact that of the 30 or 40 “ gentlemen ” introduced to her, she “ would have none of them.” She continued to patronize defendant’s establishment, to the end of the period fixed in the contract; and it had been fully performed as to her, except in repaying her the money as agreed. We therefore think she was as much in the wrong as the defendant. ' As was well said in the court below, “ courts of justice are not required in any way to aid the enforcement of an illegal contract, or to lend their assistance in any respect to an illegal transaction. The parties being m pari delicto, the courts will leave them where they find them, and not attempt to balance equities; their action is controlled by a principle having no respect to the equities between the parties, but rests upon the solid and broad foundation of a wise and prudential governmental policy ” (see Rose v. Truax, 21 Barb. 361; Schemerhorn v. Talman, 14 N. Y. 94, 102, 141; Tracy v. Talman, Id. 162, 182; Pratt v. Adams, 7 Paige 615; Barton v. Port Jackson &c. Plank Road Co., 17 Barb. 397). The aid of the law is not withheld from any consideration of the rights or equities of the parties, as between themselves, but solely to prevent an infringement of the public law or policy of the state (Sedgewick v. Stanton, 14 N.Y. 289). This does not fall within that class of cases where, although both parties are in the wrong, yet, by reason of some peculiar advantage taken by the one over the other, they are not in pari delicto; in which case the law will grant relief for the less guilty; as in the case of “ cappers"in,” “ bunco steerers,” “ mock auctioneers,” usurers, etc. Mrs. Guión was just as capable of acting as the defendant, and was not deceived by him. On the other hand, she bargained for the very thing which was contrary to law. The case, in principle, is more nearly analogous to gambling, wager, and lottery contracts, where, it is true, actions may be maintained to recover back money paid or lost, although both parties are equally in the wrong; but this is because laws have been enacted expressly permitting such recovery; and this we think an additional reason why there should be none in this case, where there is no law permitting it. Mr. Justice Story, in Ms Equity Jurisprudence, §§ 260, 263, says that money paid on a marriage brokerage contract may be recovered back in a court of equity, and cites several cases; but these were where money had been paid secretly, for the purpose of bringing about a marriage with a designated person, and the rights of third parties were involved. Judge Willard, in discussing this question, rests his argument upon the assumption that such contracts are underhand agreements, and constructively fraudulent as to third persons or the public; and, in support of his argument, cites the same cases. But in this case the contract did not affect third persons, was not underhand or secret, and both parties were entirely-free to act, and well understood what they were doing. To permit plaintiff to recover would be to aid one of two equally in the wrong. It is unnecessary to discuss the question of the most effectual way of brealcing up such demoralizing institutions, as that is a subject for legislative consideration, and not to be determined by the courts: For these "reasons, and those given in the court below, we think the order of the General Term should be reversed and the order of the Special Term affirmed, with costs. As the question is a novel one, and of public importance, we tMnk it should be determined by the court of last resort; and leave is therefore given to appeal to the Court of Appeals. Larremore, Ch. J., and Allen, J., concurred. Order of General Term reversed and order of Special Term, affirmed, with costs.