Moses v. Katzenberger

1 Handy 46

• Court: Ohio Superior Court, Cincinnati
• Decided: July 1, 1854
• Status: Published

Opinion

Spencer, J.

Upon a view of the entire Case, the Court is of opinion with the plaintiff, that the contract is void, as being made in fraud of third persons.

Both parties agree, that one shall use' his exertions to procure a release from the other creditors, on a supposition by the latter that all creditors are faring alike; whilst, in fact, the defendants are to receive double the amount that the others receive. But, the agreement is not void for the excess merely ; if at all, it is void in tolo. Where one creditor makes a stipulation for an additional benefit or security to himself, without the knowledge of others, it is a fraud on the latter; and the effect will be to destroy any security which may have been given to him, even for the legal amount of the composition. 11 Adol. & El. 1033, (39 Eng. C. L. 315): Chitty on Con. 592.

If the agreement be void on the one side, it is so also on the other; both parties being equally criminal. The plaintiff occupies the unenviable position of asking to be freed on his part from the obligations of a contract alleged to be a fraud upon others, whilst at the same time he seeks a performance on the part of the defendants. He does not, in the expressive language of the law, come into Court with clean hands. And we cannot imagine a case where the general, if not universal principle of law better applies, that‘where an agreement appears to be illegal, immoral, or against public policy, a Court of Justice will leave the parties where [it finds them. 4 Ohio, 419.

Judgment will therefore be entered for the defendant, with costs.