Daily capital journal. (Salem, Oregon) 1903-1919, 1911-09-22

D. ~. L CITY OdlCllly OlC6Ohs
If the plaintiff would recover his
bonds because OF the vice of the
agreement by which he was induced
to part with them, he must in so
many words confess its unlawful
ness and ask to be relieved from its
burdens.
AS to the fraud, 1t is alleged as the
inducement which led the plaintiff to
make the contract whether legal or
not. No one seeks to recover dam
ages for fraud but rather for its
hurtful effect. 1t Is mere incident
of the transaction in question. In
deed, for the purpose of recovering
property with which the plaintiff
may have parted under an agreement
void as against public policy but
which is yet eXecutory, it matters
not whether he entered into the ar
rangement by reason of the fraud of
the other party or of his own free
will and accord. Although in pari
delicto as held in Cone V. Russell
infra, the recanting party may be re-
stored to his own If the place of re-
pentance has not been passed by the
complete execution of the illegal con-
tract Much more is he entitled to
relief If he has been deceived by the
other party and drawn into an Of
fense against public policy.
Again, it is not necessary as a mat
ter Of pleading that the plaintiff
should come into a court of law pre-
facing his complaint with a peccavi
and a general confession of his
faults in the matter in hand, for
those are legal conclusions.
He has stated all the facts from
his standpoint, including the guile of
the defendant leading the plaintiff
into the situation from which he asks
the court to eXtricate him On any
pleading, the party making it is en-
titled to the benefit of any legal con-
clusion which may be properly
drawn from the facts stated. So in
this case, If 1t can he discerned as a
matter of law that the agreement in
pursuance of which the plaintiff
parted with his bonds was contrary
to public policy and hence void, he
may rely on the further conclusion
that he is entitled to recover the
property provided the unlawful con-
vention Is still in the executory
stage
The legal effect of the complaint is
that the moving party is proceeding
in disailirmance of the inlquitous
agreement in question. That it Is
yet eXecutory arises from the fact
that the delivery of the bonds by the
plaintiff is the only act of perform
ance by either party. None of the
things to be done by the defendant
has yet been performed While this
exists, the plaintiff may re-
trace his steps and by appropriate
litigation recover his property for
II the agreement was void as against
public policy it would not operate to
pass the title to one who is a party
to the Illegal transaction.
In Spring Co. " Knowlton, 10S U.
5. 40, the trustees of a corporation
devised a scheme to increase its cap
ltal stock whereby on payment Of so
per cent OF the par value of the new
stock, as called for by the trustees,
subscribers to the same should re-
ceiye fully paid certificates; but in
default of meeting all the calls. a de-
should forfeit what he had al /
ready paid Knowlton, a party to
This arrangement, paid part of the so !
per cent and failed to pay the re-
The corporation refused to
ISSUE to him the new stock or to re-
pay the money he had advanced. /
The court sustained him in recover /
ng his payments on the ground that. /
Although the scheme was void AS .
against public policy and he was a
party to it, yet as 1t was still in part
'Necutory, he was entitled to his 4
money,
In Cone V. Russell As n. ]. Eo. |
lOS, the complainants had executed n .
proxy, irrevocahle in its terms, en- 1
powering the defendants to vote GER /
ain shares of stock owned by COM
>iainantS so as to accomplish GER
ain results in the management OF
he corporation issuing the stock.
among others, the employment of |
me OF the complainants as manager
II the concern at a large salary. The
iice chancellor held that, although
he complainants were in pari delic-
n, they were entitled to relief
.gainst the illegal agreement, to have
he proxy cancelled and to be re-
stored TO their former situation.
To the same effect is Sheppard V.
Rockingham Power Co, $50 n. c. 776.
Many other cases might be cited. but
he controlling principle in them all
5 that until an agreement void as
'gainst public policy is fully execut
ID either party may retreat and by
proceeding the courtss
Will restore him as far as possible to
Ms previous estate.
The case of Phoenix Bridge Co. V.
Keystone Bridge Co. 142 n. Y. 425,