Opinion
October Term — Filed November, 1922.
William J. Lamey, for appellant.
Reginald F. Isaacs, for respondent.
Plaintiff, a member of this bar, sued, and has obtained judgment against defendant, for a commission upon the sale of a parcel of realty. The evidence warrants findings that plaintiff was employed by defendant as a broker, and that he was the procuring cause of the sale to the buyer, one Licausi. Nevertheless, I am of the opinion that the maxim ex turpi causa non oritur actio should bar recovery. In 1917 plaintiff, acting as an attorney, represented the uncle of Licausi in a transaction that resulted in a lease, by defendant, to Licausi's uncle, of the premises here in question. In some manner that is not disclosed by the evidence Licausi became the defendant's tenant in his uncle's stead, and expended a large sum in altering the building. In April, 1920, when Licausi's lease was about to expire, plaintiff sought out the defendant for the purpose of procuring employment as broker to sell the premises to Licausi. Defendant did so employ plaintiff, and the latter repeatedly solicited Licausi, but Licausi refused to buy. Plaintiff then induced defendant to send to Licausi a letter notifying him that if he desired to renew his lease, the renewal term would be at a considerably increased rent, the plaintiff saying at the time to defendant: "I have no doubt, there is no doubt in my mind that as soon as Mr. Licausi gets the letter he will come down to see me. Then I can send him to you." It is quite clear that plaintiff counted upon the probability that Licausi would come to plaintiff for advice and assistance in the matter. Licausi did in fact come to plaintiff with the letter referred to, and sought advice, and it is impossible to believe that Licausi did not suppose, and that plaintiff did not know that Licausi supposed, that plaintiff would give Licausi the disinterested advice that an attorney owes to his client. When asked by defendant's counsel why Licausi went to him with the defendant's letter, plaintiff answered: "Mr. Licausi went to me because he very frequently asked my advice on all matter, legal advice." By the Court: "Were you his attorney?" A. "I was not his attorney, but I was interested in the dress concern for which Mr. Licausi was doing embroidery work and Mr. Licausi in coming in to see us occasionally always consulted me on legal matters." When Licausi came to him, plaintiff, to use his own language, "told" Licausi to buy the property, and sent him to see defendant's representative. Licausi bought the property. Defendant induced Licausi to avail, on the title closing, of the services of defendant's attorney. When plaintiff learned of this, he complained to defendant for having been supplanted as Licausi's attorney for title-closing purposes.
It seems to us to be too plain to admit of serious argument that the device resorted to, at plaintiff's suggestion, of demanding of Licausi an increase of rent, was a determining factor in bringing about the sale, and that it is equally plain that at the material times plaintiff owed to Licausi the duty of giving him the honest and unselfish advice that an attorney must always give to one who obtains his advice. We rest our decision upon that point upon no nice or slender ground, but base it upon the broad and general proposition that one who is a member of a bar cannot, at least within, or for use within, the territorial limits of his license, give advice, whether paid for, or gratuitous, that is not honest and disinterested advice. Of course, a lawyer is not required to give free advice, but if he chooses to do so he must be held to the same standard of honor that obtains when he is paid for his services. The boasted nobility of the profession of the law would be a mockery and a mere name if the rule were otherwise.
The point is urged that Licausi makes no complaint, and is well content with his bargain, and that it does not lie in defendant's mouth to question plaintiff's good faith. Upon plainest principle, it is wholly immaterial that Licausi happens to be satisfied with the plaintiff's treatment of him. A like contention was unsuccessfully made in Everhart v. Searle, 71 Penn. St. 256, and Cannell v. Smith, 142 id. 25. The maxim we are dealing with rests upon the dictates of public policy, and is intended, not for the protection of litigants, but for the protection of society generally. And so it does not matter that the defendant, as well as Licausi, may have actually benefited by the plaintiff's duplicity. As Lord Mansfield said, in the celebrated case of Holman v. Johnson, 1 Cowp. 341: "It is not for his [a defendant's] sake, however, that the objection is ever allowed; but it is founded in general principles of policy, which the defendant has the advantage of. * * * The principle of public policy is this; ex dolo malo non oritur actio. No court will lend its aid to a man who founds his cause of action upon an immoral or an illegal act. If, from the plaintiff's own stating or otherwise, the cause of action appears to arise ex turpi causa, or the transgression of a positive law of this country, there the Court says he has no right to be assisted. It is upon that ground that the Court goes; not for the sake of the defendant, but because they will not lend their aid to such a plaintiff." And see Nellis v. Clark, 20 Wend. 24; affd., 4 Hill, 424, and approved in Moseley v. Moseley, 15 N.Y. 334.
It is well settled that the ex turpi causa defense need not be set up by a defendant. Doucet v. Massachusetts Bonding Ins. Co., 180 A.D. 599; Sprague v. Webb, 168 id. 292; Dressel v. Hanser, 101 Misc. 574. "The law," said Cowen, J., "will not tarnish its hands by rescuing [a person who founds his claim upon a wrong] from the mire." Nellis v. Clark, supra.
Judgment reversed, without costs of appeal to either party, and complaint dismissed upon the merits, with costs.
GUY and BIJUR, JJ., concur.
Judgment reversed.