Marsicano v. City of Birmingham

51 So. 608, 165 Ala. 405, 1910 Ala. LEXIS 48

• Court: Supreme Court of Alabama
• Decided: February 3, 1910
• Status: Published

Opinion

SAYRE, J.

— It appears from the agreed statement of facts, upon which this cause was tried in the court below, that the appellant being engaged in the saloon business in the city of Birmingham in the year 1906, when that business was lawful, his place of business was in March of that year closed by the municipal authorities on account of appellant’s violation of the excise law of the city. Thereupon, on appellant’s request, he was allowed to reopen his place of business, upon his deposit with the treasurer of the city of the sum sued for, upon condition that said sum was to be returned to him if the excise laws of the city were not violated during the year 1906. It was further agreed that appellant had subsequently and during the year been convicted of a violation of the excise law of the city.

We need not look too deeply into the contract by which appellant deposited his money with the treasurer of the city. If it was a valid contract, its terms stand in the way of plaintiff’s recovery. If, as is contended, it was void, as offensive to public policy, then the money was received by the treasurer as an individual, the parties were in pari delicto, and the law will not intervene for the relief of either, but will leave them to their own devices. In no event can the appellant recover of the city of Birmingham.

Affirmed.

Anderson, McClellan, and Mayfield, JJ., concur.