Ager v. Duncan

50 Cal. 325

Opinion

By the Court:

1. It appears from the- findings--that the~note-sued~upon was-without consideration.

2. It does not appear that Quigley had any creditors to be defrauded. On the contrary, the inference from the seventh finding is that he had none. But if it be assumed that he had creditors, and that the note was given for the purpose of concealing from them the fact that he had an interest in the co-partnership, the findings show that Quigley and the plaintiff were in pari delicto in the fraudulent intent. The contract is executory, and the action is to enforce payment of the note given with this fraudulent intent. In such cases it is immaterial by which of the parties the fraudulent nature of the contract is disclosed to the court. As soon as the fraud is made to appear by either of. the parties, the court will refuse to interfere, and leaye them as they were. In other words, it will not enforce a contract founded on the mutual turpitude of the parties to it. And for the same reason, if the contract has been executed, the court will not aid either party to escape its consequences. (Chitty on Contracts, pp. 729, 730, 731, and authorities there cited; Bailey v. Taber, 5 Mass. 296; Wheeler v. Russell, 17 Mass. 258; Farrar v. Burton, 5 Mass. 395; Holman v. Johnson, 1 Cowp. 343; Parsons v. Thompson, 1 H. Bl. 322; Roll v. Raguet, 4 Ohio, 400.)

Judgment reversed and cause remanded, with an order to enter judgment for the defendant.