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further proceeding with the litigation, aid in the enforcement of such a conwhich involved the same subject-mat- tract in behalf of the party who is reter as the compromise.

sponsible for its inequality. In Winslow v. Noble (1881) 101 III. In Pope Mfg. Co. v. Gormully (1892) 194, one who sought to enjoin an ac- 144 U. S. 224, 36 L. ed. 414, 12 Sup. Ct. tion of forcible detainer to recover Rep. 632, the suit was for specific perpossession of a tract of land occupied formance of a contract, the terms of by him was held not to be in court which are stated in the opinion as folvith “clean hands” so long as he re- lows: "The defendant, in consideratained a certain sum of money which tion of receiving a license to use certhe defendant had paid in purchasing tain patents belonging to the plaintiff the property from and at the instance during the life of such patents, agrees of the complainant, which property never to import, manufacture, or sell had been encumbered with a defec- any machines or devices covered by tively executed mortgage which was certain other patents, unless permitted about to be foreclosed at the time of in writing so to do, nor to dispute or the purchase, and to prevent which contest the validity of such patents or the complainant induced the defend- plaintiff's title thereto, and further to ant to buy the property. The defect in aid and morally assist the plaintiff in the mortgage deed was the ground on maintaining public respect for and which the complainant prayed that the preventing infringements upon the injunction be issued.

same; and further agrees that if, after In McCabe v. New York C. & H. R. the termination of his license, he shall R. Co. (1909) 114 N. Y. Supp. 303, fail- continue to make, sell, or use any maure to return the amount paid by a chine or part thereof containing such railroad company as consideration for patented inventions, the plaintiff shall future damage to land of the plaintiff have the right to treat him as an inby the presence of the defendant's fringer, and to sue out an injunction railroad was held to bar an action against him without notice. There are against the railroad company because other covenants in this contract which of such damage.

show that the plaintiff intended to reIn Farr v. Childs (1918) Mich. serve to itself a large supervision and - 169 N. W. 868, it was held that a control of the defendant's business," person who received a transfer of etc. After referring to the decision property with the knowledge that it in Cathcart v. Robinson (1831) 5 Pet. was made in fraud of the rights of the (U. S.) 264, 276, 8 L. ed. 120, 124, holder of a previous contract was not wherein the principle of the maxim entitled to the aid of equity to main- is stated and applied, the court said: tain possession against the person “These principles apply with great thus defrauded.

force to the contract under consideraIn International Land Co. v. Marshall tion in this case. Not only are the (1908) 22 Okla. 693, 19 L.R.A. (N.S.) stipulations in paragraphs 9 and 11 1056, 98 Pac. 951, failure of a person unusual and oppressive, but there is seeking a reconveyance of real estate much reason for saying that they were conveyed by him to the defendant un- not understood by the defendant as der a parol agreement to return the importing any obligation on his part property on the payment of the money beyond the termination of his license. secured thereby, to refund money re

Indeed, the operation of these coveceived therefor in a transaction which nants upon his legitimate business was believed to be only a mortgaging

was such that it is hardly possible he of the property, whereas it was an ab

could have understood their legal pursolute conveyance thereof, was held to port. The testimony upon this point preclude him from obtaining relief. was fully reviewed by the court below

in its opinion, and the conclusion e. Lack of mutuality in contract.

reached that the contract 'was an artIf a contract is oppressive and lacks fully contrived snare to bind the demutuality, a court of equity will not fendant in a manner which he did not

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comprehend at the time he became a to another, regardless of the latter's party to it.' We have not found it nec- financial responsibility. The court reessary to go into the details of this fused to decree the specific performtestimony. While we are not satisfied

ance of this contract at the instance of that his assent to this contract was

the employer, on the ground that it obtained by any fraud or misrepre- lacked mutuality, and the complainant sentation, or that the defendant should

was not in court with “clean hands." not be bound by it to the extent to which it is valid at law, we are clear- 7. Inducing breach of contract. ly of the opinion that it is of such a

A court of equity will not lend its character that the plainhiff has no

aid to one who, in connection with the right to call upon a court of equity

matter in controversy, has, with notice to give it the relief it has sought to

of the existence of a contract of emobtain in this suit.”

ployment, so dealt with a party thereWhere the evidence disclosed that

to as, in effect, to induce him to break the complainant in a suit to enforce

the contract. See T. B. Harms & the specific performance of a contract

Francis, Day, & Hunter v. Stern for the sale of certain real estate was a person of no financial responsibility, versing (1915) 222 Fed. 581.

(1915) 145 C. C. A. 2, 229 Fed. 42, re

. a "straw man," acting for an undis

Therefore, courts of equity, in apclosed principal whose purpose was to

plying the principle embodied in this profit from the transaction if it should be profitable and to evade responsibil- employment, have refused to enjoin

maxim in suits involving contracts of ity should the transaction prove other

the persons whose services were conwise, it was held that the complain

cerned from serving any other emant was not in court with “clean

ployers, where the persons seeking the hands," and was not entitled to the

relief were guilty of unconscionable relief prayed. Houtz V. Hellman

conduct in knowingly inducing the de(1910) 228 Mo. 655, 128 S. W. 1001.

fendants to break contracts of employAn employer who seeks to enjoin an

ment previously entered into by them employee from selling his services to

with third persons, and this is true another is not entitled to the relief

notwithstanding the former agreesought if the contract of employment

ments did not embrace the elements on which the suit is based lacks mu

of a valid contract, and were theretuality. Kenyon v. Weissberg (1917)

fore unenforceable in a court of law. 240 Fed. 536 (contract with actor);

Thus, in Weegham v. Killifer (1914) American League Baseball Club v.

L.R.A.1915A, 820, 131 C. C. A, 558, 215 Chase (1914) 86 Misc. 441, 149 N. Y.

Fed. 289, affirming (1914) 215 Fed. Supp. 6 (contract with baseball

168, it appeared that the defendant, player).

a professional baseball player, signed Thus, in Kenyon V. Weissberg

a contract with the Philadelphia Na(Fed.) supra, it appeared that a con

tional League Baseball Club to play tract of employment bound the em

for that organization during the baseployee to performance thereof for a

ball season of 1913. This contract definite period of time, without giving

gave to the club the right to terminate to him the corresponding right to com

the contract on ten days' written nopel its performance on the part of the

tice, and contained a clause reserving, employer during the stipulated period.

for a consideration, the defendant's It further provided that the employee

services for the following baseball might be discharged from his employ- season, provided an agreement could ment at any time his services should be reached by the parties as to the be determined by the employer to be terms of the contract for the ensuing unsatisfactory, without making any year. After the close of the baseball provision as to what should constitute season of 1913 the defendant was otisatisfactory service. By the terms of fied by the Philadelphia Club that it the contract the employer also ac- desired his services for the season of quired the right to assign the contract 1914, and would pay him an increased

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salary. Nevertheless the defendant that if the prior contract had not been entered into a contract with the Chi- void, the relief prayed by the plaintiff cago Federal League Baseball Club to could not have been granted because play for that organization during the of the equitable principle of “unclean baseball season of 1914. The Fed- hands." eral League Club had notice of the re- In 'Ely v. King-Richardson Co. serve clause in the contract of the de- (1914) 265 Ill. 148, L.R.A.1915B, 1052, fendant with the National League 106 N. E. 619, wherein it appeared that Club for the season of 1913. The de- the employees of a corporation organfendant subsequently signed a con- ized a rival concern, and induced emtract to play for the Philadelphia Na- ployees of the older company to break tional League Club during the season their contracts of employment with of 1914, and this suit was brought to that concern and enter the employ of restrain him from playing with any the new company, it was held that the other baseball club than the plaintiff's acts complained of were so unconnectorganization, the Chicago Federal ed with the subject matter of the suit, League Baseball Club. The court held which was to recover compensation that by the reserve clause in the con- for the services of the organizers of tract of 1913, the National League the new company, earned while they Club was invested with an equitable were employees of the older concern, right to have the defendant endeavor that they could not preclude a recovin good faith to arrange with it for ery by the complainants under the his services for the 1914 season be- principle of the maxim, He who fore he should attempt to contract for comes into equity must come with his services with another club; and clean hands." that the act of the plaintiff in con

g. Fraud. tracting for the defendant's services

Under the principle of the maxim for that season with notice of the existence of the reserve clause in the

that he who comes into equity must

come with clean hands, a court of latter's contract referred to was a fraud on the National League Club,

equity will not aid a party to a suit and that therefore the plaintiff's suit

for the specific performance or the

cancelation of an executory contract, could not be sustained, under the

or to set aside an executed contract, maxim, “He who comes into a court of

on the ground of fraud, if the party equity must come with clean hands.

seeking the aid of the court has been However, in T. B. Harms & Francis, Day, & Hunter v. Stern (Fed.) supra,

a party to the fraud. Reynolds v. Boit was held that the owner of the copy

land (1902) 202 Pa. 642, 52 Atl. 19; right of a musical composition was

Swanson v. Sims (1917) Utah,

170 Pac. 777. entitled to an injunction restraining

Thus, in the case first cited, the its infringement, notwithstanding he had purchased the copyright from the

court quoted with approval from

Pomeroy's Equity Jurisprudence, as composer with notice of the fact that the latter had previously entered into

follows: “If a contract has been en

tered into through fraud, or to accoman agreement with the defendants, whereby the composer "sold, assigned,

plish any fraudulent purpose, a court

of equity will not, at the suit of one and transferred” to the defendants the

of the fraudulent parties, a particeps "right to print, publish and sell” all

doli, while the agreement is still execompositions which he "might write"

cutory, either compel its execution or during a definite period, within which

decree its cancelation; nor, after it period the copyrighted production was

has been executed, set it aside, and composed. In a previous suit the prior

thus restore the plaintiff to the interagreement had been declared invalid

ests which he has fraudulently transas lacking mutuality, and the decree

ferred. Equity will leave such parties therein was held by the court in the in exactly the same position in which instant case to be conclusive in the they have placed themselves, refusing litigation before it. The court held all affirmative aid to either of the


fraudulent participants. The only. lins v. Blantern (Eng.) supra, the equitable remedies which they can ob- court said: “Whoever is a party to tain are purely defensive.” For appli- an unlawful contract, if he hath once cations of this rule, see infra, V. paid the money stipulated to be paid

in pursuance thereof, he shall not h. Illegality.

have the help of a court to fetch it 1. Rule stated.

back again; you shall not have a right A court of equity, in the application

of action when you come into a court of the principle of this maxim, will

of justice in this unclean manner to not aid any of the parties to a con

recover it back. Procul, o procul este, tract tainted with illegality in a con

profani!' In this respect the rule in troversy arising out of or directly

equity is the same as at law. Equity connected with the illegal agreement,

follows the rule of the law, and will but will leave them in the position in

not interfere for the benefit of one which they have placed themselves by

such party against a particeps crimitheir unlawful conduct. Collins v.

nis. The suppression of illegal conBlantern (1767) 2 Wills. 350, 95 Eng.

tracts is far more likely in general to Reprint, 852; Creath v. Sims (1847)

be accomplished by leaving the par5 How. (U. S.) 192, 12 L. ed. 111; Sam

ties without remedy against each othple v. Barnes (1852) 14 How. (U. S.) 70, 73, 14 L. ed. 330, 332; Beck v.

2. Application of rule. Flournoy Live-Stock & Real-Estate Co. In Creath v. Sims (1847) 5 How. (1894) 12 C. C. A. 497, 27 U. S. App. (U. S.) 192, 12 L. ed. 111, an injunc618, 65 Fed. 30; Shattuck v. Watson tion was sought to stay proceedings (1890) 53 Ark. 151, 7 L.R.A. 551, 13 on a judgment at law recovered S. W. 516; Roe v. Kiser (1896) 62 Ark. against the complainant on a promis92, 54 Am. St. Rep. 288, 34 S. W. 534; sory note, the consideration for which Atwood v. Fisk (1869) 101 Mass. 363, was certain slaves. While the slaves 100 Am. Dec. 124. See also Houtz v. were delivered in Tennessee, the conHellman (1910) 228 Mo. 655, 128 S. tract for them was, as a matter of fact, W. 1006. See also LANGLEY v. DEVLIN made in Mississippi, “and was de(reported herewith) ante, 32.

signed to be and was in reality, a Thus, in Shattuck v. Watson (1890) fraud upon the Constitution and laws 53 Ark. 147, 7 L.R.A. 551, 13 S. W. 516, of Mississippi, forbidding the introthe court said: “It is a practicable duction of slaves, as merchandise, principle that guides equity courts in within that state." The court said: their administration of justice that "Whosoever would seek admission inhe who invokes their aid must come to a court of equity must come with with clean hands,—that he who hath clean hands.

The complaincommitted iniquity shall not have ant alleges that the obligation to equity. .

Mr. Story, treating which he had voluntarily become a the subject as to the rights of parties party was intentionally made in fraud to such an agreement, states the law of the law, and for this reason he as it is generally approved: "The gen- prays to be relieved from its fulfileral rule is, that where an illegal con- ment. This prayer, too, is preferred tract has been made, neither courts of to a court of conscience,-to a court law nor of equity will interpose to which touches nothing that is impure. grant any relief to the parties, but The condign and appropriate answer will leave them where it finds them, if to such a prayer from such a tribunal they have been equally cognizant of is this: that, however unworthy may the illegality.' 1 Story, Contr. $ 486; have been the conduct of your oppo2 Parsons, Contr. 746; 2 Addison, nent, you are confessedly in pari deContr. pp. 715–724; 1 Pom. Eq. Jur. licto; you cannot be admitted here to § 402."

plead your own demerits; precisely, In Atwood v. Fisk (1869) 101 Mass. therefore, in the position in which you 363, 100 Am. Dec. 124, quoting from have placed yourself, in that position the opinion in the English case of Col. we must leave you."


In Trible v. Nichols (1890) 53 Ark. enjoin the collection of notes given 271, 22 Am. St. Rep. 190, 13 S. W. 796, by him as security. the court refused to enforce a right to In Hays's Estate (1893) 159 Pa, 381, subrogation on the ground that it was 28 Atl. 158, an agreement between the dependent on a usurious contract. plaintiff and another lien creditor to In Roe v. Kiser (1896) 62 Ark. 92,

suppress competitive bidding at a ju. 54 Am. St. Rep. 288, 34 S. W. 534, a dicial sale of the property of a dece. party seeking relief against a mort

dent was held to preclude him from gage was held to be in court with "un

relief on a rule against legatees of the clean hands” because of his participa

estate, to show cause why the plaintion in a usurious transaction out of

tiff should not be subrogated to the which the mortgage arose.

lien of their legacies. In Downey v. Charles S. Gove Co.

In Kennedy v. Lonabaugh (1911) (1909) 201 Mass. 251, 131 Am. St. Rep.

19 Wyo. 352, 117 Pac. 1079, Ann. Cas. 398, 87 N. E. 597, the court refused equitable relief against a mortgage

1913E, 133, it appeared that a part

nership was formed for the purpose of given to secure notes for the price of liquor, the purchase of which was so

procuring public lands by fraudulent licited in violation of law.

entry thereon.

It was held that an In Pendleton v. Gondolf (1915) 85

accounting between the partners N. J. Eq. 308, 96 Atl. 47, it appeared

would be denied. that the complainant agreed to fur

Where the consideration for a connish the money for a "wire-tapping" tract is the promise of a party thereto scheme, whereby information to be not to prosecute another for criminal used in gambling was to be obtained conduct, a court of equity, in applyillegally. It was held that he was not ing the principle of the maxim, will entitled to the aid of equity to set refuse its aid to either of the parties aside a fraudulent conveyance by his to the agreement suing to enforce it, confederate,

or for relief from its burdens, but will In Unckles v. Colgate (1896) 148 leave them as it finds them. Shattuck N. Y. 529, 43 N. E. 59, affirming (1893) v. Watson (1890) 53 Ark. 147, 7 L.R.A. 72 Hun. 119, 25 N. Y. Supp. 672, one

551, 13 S. W. 516 (promise not to who, as a holder of its certificates of prosecute for forgery); Atwood V. trust, was a party to an illegal com

Fisk (1869) 101 Mass. 363, 100 Am. bination or trust, was held to be in

Dec. 124 (promise not to prosecute court with "unclean hands" in seek

for embezzlement). Thus, in the case ing to compel an accounting of the af

first cited, a court of equity refused fairs of the trust by the trustees

to cancel a mortgage which was exe

cuted in pursuance of an agreement thereof.

entered into between the mortgagor In American League Baseball Club

and mortgagee that, on consideration v. Chase (1914) 86 Misc. 441, 149 N.

of the execution of such a mortgage, Y. Supp. 6, it was held that the play

the mortgagee would refrain from ers' contract system of "organized baseball" constituted unlawful

prosecuting the son of the mortgagor

for forging a prior mortgage and notes monopoly, so that equity would not

on his father's property, on the ground enforce the negative covenant in a

that the agreement not to prosecute contract with a player.

the son was illegal and the complainIn Kahn v. Walton (1889) 46 Ohio

ant was not in court with "clean St. 195, 20 N. E. 203, a person who had

hands." entered into an illegal stock specula- Illegality affecting a marriage contion contract was held not to be en

tract has been held to be sufficient, in titled to an injunction against the pay- the application of the principle of "unment of checks given for losses. So, clean hands,” to justify a court of in Smith v. Kammerer (1892) 152 Pa. equity in refusing to lend its aid to 98, 25 Atl. 165, a party to a similar either of the parties thereto in a suit contract was held not to be entitled to arising out of the contract. There

4 A.L.R.-6


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