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equacy of the consideration, and ignorance of law and facts changing the nature of the property sold, known to opposite party to the contract, were held to bar a suit for the specific performance thereof.

In Larscheid v. Kittell (1910) 142 Wis. 172, 125 N. W. 442, 20 Ann. Cas. 576, it appeared that the plaintiff had sold certain land in controversy in the suit to the assignor of the defendant corporation under a contract of sale. Subsequently, on the organization of the defendant company, in which organization he participated with the company's said assignor and became a stockholder of the concern, he gave a warranty deed to the land to the company and took a note of its directors for the deferred payments under the contract. The court held that the giving of the warranty deed was a declaration to the world that the title of the corporation to the land was free from all encumbrances, and that the plaintiff, in seeking to establish and enforce a lien on the property of the defendant, which had become insolvent, for the balance of the purchase money under the contract, was in court with "unclean hands," and not entitled to the relief prayed.

In McDonald v. Markesan Canning Co. (1910) 142 Wis. 251, 125 N. W. 444, it appeared that a person, claiming justification therefor, withdrew from a corporation before the completion of its organization. After many years, and when the company had become successful in its enterprise, he sued the corporation to compel it to perform the contract which it had entered into with him when the project was started, and which he had repudiated. He was held to be in court with "unclean hands," and disentitled to the assistance of a court of equity in the prosecution of his claim.

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basis of the suit, a court of equity will not deny its aid to a litigant guilty thereof on the theory that such litigant is in court with "unclean hands." Therefore, in Carr v. Craig (1908) 138 Iowa, 526, 116 N. W. 720, it appeared that the plaintiff and her husband had purchased land which was conveyed to them jointly. They were subsequently separated. The husband had not invested any money in the land, and the money paid therefor was that of the wife only. It was agreed between the plaintiff and the defendant, who was her brother, that the property, for the purpose of extinguishing the husband's apparent title, should be sold to satisfy a purchase-money mortgage thereon, that the defendant should purchase the property at the foreclosure sale, and either pay to the plaintiff the amount which she had invested in the property, or hold the latter in trust for her, subject to the payment by her of the money which he should be required to invest in it in order to acquire the title. In a suit instituted for the purpose of enforcing this agreement it was contended that, because of the act of the plaintiff in endeavoring to extinguish her husband's title, the plaintiff was not in court with "clean hands;" but it was held that the principle of the maxim had no application, the act complained of being unconnected with the subject-matter of the suit.

Where a marriage contract is not void but voidable, it has been held that a court of equity will deny the complainant any relief in litigation affecting such marriage if he comes into court with "unclean hands." Stokes v. Stokes (1908) 128 App. Div. 838, 113 N. Y. Supp. 145. That case arose under a statute providing as follows: "A marriage is absolutely void if contracted by a person whose husband or wife by a former marriage is living, unless either 3. Such former

husband or wife has absented himself or herself for five successive years then last past without being known to such person to be living during that time," in which event it was held by the court that such "a marriage is void from the time its nullity is de

clared by a court of competent jurisdiction." The court held that there was nothing in the statute to compel the rendition of a decree of nullity of a marriage between persons one of whom had been previously married, but whose husband had absented himself for nine years without any knowledge of his whereabouts by the deserted spouse, where the husband of the second marriage was not in court with "clean hands" in seeking the annulment, in that he had agreed, on ascertaining a few months after the marriage that his wife's former husband was still living, to remain with her and continue his recognition of her as his wife, and that he had sustained towards her the relation of husband for two years following the acquisition of such information.

In Bays v. Bays (1918) 105 Misc. 492, 174 N. Y. Supp. 212, a boy who procured a woman to marry him by falsely stating his age, and who swore falsely as to his age in order to procure a marriage license, was held to be in court with unclean hands in seeking an annulment because of his nonage.

However, reprehensible conduct of a litigant which is unconnected or indirectly connected with the marriage contract, such as illicit cohabitation prior to the marriage, will not, in the application of the principle of this maxim, preclude a recovery in a court of equity of the relief prayed. Lyman v. Lyman (1916) 90 Conn. 406, L.R.A. 1916E, 643, 97 Atl. 312; Roote v. Roote (1909) 33 App. D. C. 398, 23 L.R.A. (N.S.) 240.

b. Affecting person not party to contract.

The unconscionable conduct complained of in order to bar the person charged therewith from the aid of a court of equity need not be directed against the other party or parties to the contract, but may be a wrong perpetrated on a third person.

Thus, in Brown v. Brown (1895) 66 Conn. 493, 34 Atl. 490, after a reference to the maxim, the court said: "The general rule is that the parties to a contract must act not only bona fide between themselves, but that they shall not act mala fide in respect to other persons who stand in such a re

lation to either as to be affected by the contract or its consequences."

So in Barnes v. Starr (1894) 64 Conn. 154, 28 Atl. 980, the concealment by the parties to an antenuptial agreement of their intention in executing the agreement, that it was simply for the purpose of overcoming the objections of the relatives and friends of the husband, and was to be destroyed after being shown to such relatives and friends, was held to be such inequitable conduct toward the latter, who were the beneficiaries under the will of the husband, that it could not be set up by the surviving spouse to defeat the agreement and procure her share of the estate.

c. Failure to perform contract. A party to a contract who fails to perform a material obligation of the contract is not in court with "clean hands" when he seeks the aid of a court of equity in the protection of his alleged rights arising out of or connected with the contract, and is not entitled to the relief prayed. AsheCarson Co. v. Bonifay (1906) 147 Ala. 376, 41 So. 816 (improperly boxing trees); Henrique v. Paris (1896) 10 Haw. 412 (breach of covenant in lease to clear property); Bennett v. Stuart (1914) 161 Ky. 264, 170 S. W. 642 (fraudulent misappropriation of money advanced to purchase mining land); Newby v. Laurence (1909) 84 Neb. 622, 121 N. W. 965 (failure of complainant to share fruit picked and gathered by him from defendant's land, according to terms of contract, pleaded in suit to enjoin defendant from entering on property); Westwood v. Cole (1910) 66 Misc. 53, 120 N. Y. Supp. 884, judgment reversed in (1910) 139 App. Div. 841, 124 N. Y. Supp. 97 (failure of plaintiff to invested in partnership adventure under partnership agreement, pleaded in suit for an accounting of partnership business); Georgia Bldg. Co. v. Burdett (1914) 150 N. Y. Supp. 27 (refusal of certain minority stockholders of corporation to consent to mortgaging of corporate property, a statute requiring consent of two thirds of stockholders to such project, after money which was to be secured by such mortgage had been advanced in accordance

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with agreement whereby, in consideration of such advance, minority stockholders were to consent to execution of mortgage, disclosed in suit by minority stockholders to cancel mortgage); Caldwell v. Virginia F. & M. Ins. Co. (1911) 124 Tenn. 593, 139 S. W. 698 (oral agreement between plaintiff and agent of defendant to renew fire insurance on premises, made in violation of provisions of policy sought to be renewed, pleaded in defense of suit to recover for loss); Hardee v. Alexander (1915) Tex. Civ. App., 182 S. W. 57 (breach of agreement between cotenants); Maginnis v. Knickerbocker Ice Co. (1901) 112 Wis. 385, 69 L.R.A. 833, 88 N. W. 300 (wilful disregard by defendants of conditions of deed of conveyance by common grantor of plaintiff and defendants of certain land to defendants, which disregard entitled said grantor, by terms of deed, to declare forfeiture of property by defendants, pleaded in support of suit to quiet title of plaintiff to said land procured from said common grantor by conveyance after said breach and forfeiture); Sanders v. Thomlinson (1910) 2 Alberta L. R. 512 (default in payment of second instalment of purchase price of property, nonpayment of taxes, and depreciation in value of property, disclosed in suit by purchaser to recover amount of first instalment paid by him, and claimed because of alleged wrongful sale of property by defendant after rescission of contract of purchase, which deprived him of right of redemption).

In Montana Water Co. v. Billings (1914) 214 Fed. 121, appeal dismissed in (1915) 139 C. C. A. 665, 224 Fed. 1021, the suit was for the specific performance of the renewal clause of a contract to supply the defendant city with pure and wholesome water for the public use. At the expiration of the contract period the defendant, by the terms of the agreement, was to exercise an option to purchase the water system, with the alternative of renewing its contract with the plaintiff for a like period of time. The evidence disclosed that the plaintiff had not been supplying the city with pure and wholesome water,

as required by the contract, and had not taken steps to remedy the condition. The court held that the plaintiff was not entitled to the relief prayed, saying: "Here, the fact remains that complainant failed in its most vital obligation, involving the health and well-being of a large community, and is vulnerable to the maxim, 'He who comes into equity must come with clean hands.'

The question involved in Union Cent. L. Ins. Co. v. Drake (1914) 131 C. C. A. 82, 214 Fed. 536, was the following: Where mortgaged property is sold by a trustee in bankruptcy for a sum which is more than sufficient to pay a mortgage on the property, is the trustee in bankruptcy entitled to the surplus for distribution among the creditors of the bankrupt generally, or is the mortgagee, who satisfied prior mortgages on the property to protect his own, and therefore acquired by subrogation the rights of the prior mortgagee against the mortgagor, the bankrupt, entitled to the sum as possessing an equity therein superior to that of the bankrupt mortgagor, where the loan secured by the latest mortgage was procured with the understanding that the money so loaned would be used for the purpose of satisfying the prior mortgages, but was appropriated by the mortgagor for a different use? It was held, applying the maxims, "He who comes into equity must come with clean hands," and "He who has done iniquity cannot have equity," that the mortgagor, by his inequitable conduct in misappropriating the fund obtained for the purpose of satisfying the prior mortgages referred to, gave to the subsequent mortgagee a superior equity in the surplus from the sale of the property over that of the trustee in bankruptcy, who stood in the place of the bankrupt mortgagor.

In Cassidy v. Metcalf (1876) 1 Mo. App. 593, the act of setting up a new business in a building adjacent to the old establishment after the sale of the good will of the old business to another, who was induced to buy it by misrepresentations of the seller that he intended to leave the city and go into business elsewhere, was held to

be a violation of the bargain, disentitling the seller to the relief sought in a suit to reform the contract on the ground of a mistake.

In Jayne v. Cortland Waterworks Co. (1905) 107 App. Div. 517, 95 N. Y. Supp. 227, it was held that the plaintiff was not in court with "clean hands" in seeking the removal of water pipes of the defendant, sunk under the land of the plaintiff, the latter not having performed a covenant in the deed of the property to his grantor for the benefit of the defendant's land, held at the time of the execution thereof by the latter's grantor, relative to the extension of a road through the property, under which the defendant could have laid its pipes without compensation to any landowner.

In Cross v. Farmers Elevator Co. (1915) 31 N. D. 116, 153 N. W. 279, one of the promoters of a corporation, who, for the purpose of gaining the control of the concern, violated an agreement with the other stockholders, that no person should acquire more than ten shares of the company's stock, by purchasing through "dummies" sufficient stock to insure for himself a controlling interest in the company, has been held to be in court with "unclean hands" in seeking the cancelation of sales of stock by the company in a manner to take such control away from him.

In Townsend v. Alexander (1825) 2 Ohio, 18, it appeared that the plaintiff and the defendant entered into a contract for the purchase by the former and the sale by the latter of certain real estate. The first two instalments of the purchase price were paid according to the agreement. In payment of the third instalment the plaintiff offered to assign notes of certain individuals, which was in compliance with the terms of the contract. The defendant offered to accept some of the notes, but refused his acceptance of the others. The plaintiff then refused to assign any but the entire number of the notes, and the defendant instituted a suit before a justice to compel the payment of the third instalment. The justice entered a judgment against the plaintiff for a cash,

payment of the amount of the notes which the defendant had refused to accept, and ordered the assignment of the notes which had been acceptable to the defendant. The plaintiff refused to assign the notes as ordered, but offered to pay the cash judgment and otherwise perform the contract. The plaintiff then instituted this suit to compel a conveyance of the property according to the terms of the contract. It was held that the justice had exceeded his authority in ordering an assignment of the notes to which reference has been made, and that his judgment was therefore for an amount less than that which was due. It was further held that while the court could not interfere with the justice's judgment, it could compel the plaintiff to do equity before granting him the relief prayed, and that as he was in court, seeking to enforce the conveyance of the property without having paid the full purchase price thereof, and persisting in his refusal to do so, his hands were not "clean," and his suit must therefore be dismissed.

In Wellsville Oil Co. v. Miller (1914) 44 Okla. 493, 145 Pac. 344, a suit to validate an oil and gas lease to certain lands and to cancel a similar lease of the same land, subsequently executed to another company, it was held that the plaintiff, in operating under its lease, as alleged, "to such an excessive and unreasonable extent that the greater part of the oil underlying said land will be exhausted by the time the lease terminated,' and that 'the unusual and excessive pumping would result in great and irreparable loss to the estate,'" and by forcing the defendant to come into court for authority to execute the subsequent lease, had breached its lease and was in court with "unclean hands," and not entitled to the relief prayed.

In Englander v. Apfelbaum (1913) 56 Pa. Super Ct. 152, it appeared that adjoining property of the parties to the suit was acquired through mesne conveyances from a common grantor, in whose deeds of the property were included certain restrictions to be observed in the use of the property. In

violation of these restrictions certain encroachments were made on restricted areas in the construction of the premises of the plaintiff, but no objection was interposed thereto during a period of nineteen years following such construction. In a suit to enjoin the defendants from violating the restrictions in their deed by constructing improvements in the restricted. area, it was held that, in view of the presumption that the violations of the plaintiff had been maintained by common consent, he was not in court with "unclean hands" in seeking the relief prayed.

In American Ice Co. v. Hunter (1914) 60 Pa. Super. Ct. 311, the plaintiff sought to enjoin the defendant from conducting his ice business in violation of an agreement between the parties, whereby, in consideration of his employment as a driver by the plaintiff, the defendant agreed not to engage in the ice business within one year after leaving its employment. There was a verbal agreement that the employment was to be from year to year. The court held that the plaintiff, because of the fact that it had discharged the defendant from its employment without cause, before the expiration of the term of the employment, was in court with "unclean hands" in praying the relief it sought.

However, where, by the terms of a conveyance of real estate by a father to his daughter, a life estate was reserved for the father, and the daughter was to pay the taxes on the property, it was held in a suit instituted by the daughter against the father, in which the latter pleaded the failure of the daughter to pay the taxes, as agreed, and his payment thereof to prevent a sale of the property for taxes, in support of his counterclaim for the cancelation of the deed as for a breach of an alleged condition subsequent, that because of such failure by the daughter she was not in court with "unclean hands," she having, before the institution of the suit, tendered payment of the taxes to the defendant, which tender was refused. Burgson v. Jacobson (1905) 124 Wis. 295, 102 N. W. 563.

In Niles-Bemet-Pond Co. v. Iron Molders' Union (1917) 246 Fed. 851, a corporation owning a controlling interest in another corporation was held not to be precluded, on the theory that it was in court with "unclean hands," from obtaining an injunction restraining striking workmen of the plant of the latter concern from committing unlawful acts in furtherance of the strike, because of the breach by the subsidiary company of an agreement entered into with its workmen on the occasion of a previous strike, which agreement induced the men to return to their work. The reason given for this ruling was that the breach referred to was not immediately connected with the subject-matter of the litigation.

d. Failure to return benefits of contract.

The familiar rule that one who, while seeking the specific performance of a contract, or resisting a suit to rescind an agreement, or seeking for other relief affecting alleged rights arising out of a contract, has failed or refused to return any benefits which he has received under the contract, is not to be entitled to the relief prayed, has, in a few cases, been put on the ground that he is in court with "unclean hands." Indianapolis Northern Traction Co. v. Essington (1912) 54 Ind. App. 286, 99 N. E. 761, rehearing denied in (1912) 54 Ind. App. 300, 100 N. E. 765.

In Pearce v. Sutherland (1910) 4 Alaska, 120, the suit was in equity for an accounting between partners. After the institution of a former suit by one of the partners against the other, a compromise agreement had been entered into. The plaintiff received a sum of money under this agreement, but, on the failure of the defendant to make a subsequent payment, the plaintiff attempted to rescind the agreement, and instituted a suit for an accounting, without, however, returning or offering to return the money paid to him under the compromise agreement, or even asking that it be set off in case of the recovery in the suit of a judgment in his favor. The court held that he was in court with "unclean hands," and was estopped from

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