As a general rule a man’s right to possession of his own chattels will be enforced against one who, without any claim of right, is detaining them, or has converted them to his own use, even though it may appear from the pleadings, or in the course of the trial, that the chattels in question came into the defendant’s possession by reason of n illegal contract between himself and the plaintiff, provided that the plaintiff does not seek, and is not forced, either to found his claim on the illegal contract, or to plead its illegality in order to support his claim.
Editorial Note No action can be brought for the purpose of enforcing an illegal contract either directly or indirectly, or of recovering a share of the proceeds of an illegal transaction, by any of the parties to it. Where the object of a contract is illegal the whole transaction is tainted with illegality, and no right of action exists in respect of anything arising out of the transaction. In such a case the maxim In pair delicate, portion est. condition defendant’s applies, and the test for determining whether an action lies is to see whether the plaintiff can make out his claim without relying on the illegal transaction to which he was a party. Halibuts 2nd De. Volvo. VII p. 173.
Case referred to Boneshakers Ltd v Barnett Instruments Leister tort the plaintiff David Marshall for the defendant. WHITEN,J The facts and arguments appear sufficiently from the Judgment. The plaintiff met the defendant, a married woman who had been separated from her husband for several years, at a party in Singapore in October 1951. He developed an infatuation for her, and soon conceived the idea of getting the defendant to live with him, with the possibility of ultimate marriage if she could obtain a divorce. To this end he arranged further meetings at which he promised her various benefits calculated to improve her material position and security, if she would fall in with his proposal.
One of the things he promised her was a new car. The defendant at the time was living with another man, but after a period of indecision eventually agreed to live with the plaintiff. On the 9th January 1952 the plaintiff moved into premises at Tells Koura occupied by the defendant, and cohabited with her there until the following August. During the first few months their association was apparently harmonious, but towards the middle of the year differences led to quarrels, and, in spite of some attempts at reconciliation, the couple finally separated on 13th August, when the plaintiff left the house at Tells Koura after a further quarrel. None of these facts are in dispute.
The present proceedings arise out of a claim by the plaintiff for the return of a car and certain clothing he alleges are wrongfully detained by the defendant. The car is the important issue in the case. It is common ground that in pursuance of his promise to give the defendant a car the plaintiff, who is employed by the City Council, applied to the City Council, in January 1952, for a loan to purchase a car; that his application was approved; and that in April 1952 a Hillman car was purchased by the plaintiff and registered in his name. With regard to this purchase the plaintiff says he told the defendant earlier on that he would have to get a loan to buy the car, while the defendant says he did not tell her until after he had moved into her house at Tells Koura.
I do not think this point is of any great importance, especially as it is clear the defendant was aware at the time of the purchase that payment was to be effected by the loan obtained from the City Council. The main question to be decided at this point is whether there was ever a gift of the car at any time by the plaintiff to the defendant, It is plain the only way such gist may have been made was by delivery. Mr.. Brenner who gave his evidence with considerable frankness firmly maintains he made it clear the car could not become the defendant’s until after the loan was paid off. Mrs.. Arioso equally strongly maintains that the plaintiff gave it to her as a gift from the day delivery was taken of it.
My conclusion on the matter is that, whatever else Met. Brenner may have done to win and later to retain the affections of the defendant, and this included paying over most of his salary to her, making her the beneficiary of his insurance, and subsequently the sole beneficiary of his will, he did tot lose sight of the dangers that might arise from a breach of his agreement with the City Council, and that he never purported to make a perfected gift of the car to the defendant, even though he may well have used words indicating the car was hers Witt a view to satisfying near desire to own the car. His own statements on this point are, on the whole, I think borne out by the circumstantial evidence.
In that connection I think that it is improbable the plaintiff would have risked his position with the City Council by any act which might have led to a violation of his loan agreement, and, as I eave indicated, the view I have formed is that he exercised in this matter a caution which was not otherwise characteristic of him at that time. Again I feel that the admitted retention of the car keys by the defendant and her obvious anxiety to maintain strict control of the plaintiffs use of the car points to a state of doubt in her mind which one would scarcely expect if Mr.. Brenner had led her to believe confidently the car was hers subject to a more or less formal interest of the City Council.
It is to be observed this attitude of anxiety on the part of defendant appears o have existed throughout from the day the car was delivered until the plaintiff left her house. I believe the plaintiff may well have told her the car was hers subject to the lien of the City Council, and that he certainly promised to give her the car absolutely after the loan was paid off, but I am not prepared to hold it has been proved he either intended or effected any delivery, actual or constructive, which amounted to a perfected gift. The next matter to consider is whether the plaintiffs claim must fall by reason of the maxim In pair delicate, potion est. condition postmodernist.
It is obvious that the contract between the parties was an immoral one, and it is also obvious that it was incidental to such contract that the defendant got possession of the car. The issue depends then on the scope of this maxim. There is no doubt that if the plaintiffs claim was based on the contract to cohabit it would necessarily fail. Mr.. Leister contends that the plaintiff does not claim on the contract, but on his title. I accept 1953 1 ML 239 at 241 this contention. But in so doing he has had to disclose the immoral contract, and to encode that the defendant’s retention of the car is a direct consequence of it. The point, therefore, arises must these circumstances defeat the plaintiffs claim to relief?
It has been laid down in the fairly recent case of Boneshakers Limited v Barnett Instruments Limited (1945) 1 KGB 65; (1944) 2 All ERE 579 that “as a general rule a man’s right to possession of his own chattels will be enforced against one who, without any claim of right, is detaining them, or has converted them to his own use, even though it may appear from the pleadings, or in the course of the trial, that the hatters in question came into the defendant’s possession by reason of an illegal contract between himself and the plaintiff, provided that the plaintiff does not seek, and is not forced, either to found his claim on the illegal contract, or to plead its illegality in order to support his claim-. I am of the opinion the present claim falls within this category. Again it is, of course, well known that the reason the law will not enforce an illegal or an immoral contract is that it is contrary to public policy to do so.
I can scarcely think I should be serving the interests of public policy if I were to hold hat the defendant, who, I consider, is not entitled to the car on any other ground, should have it because she obtained possession of it as a result of an immoral association between her and plaintiff. For these reasons I think the plaintiffs claim for possession of the car should succeed, and I give Judgment for him accordingly. As regards the other articles claimed I feel complete doubt in view of the sparse and contradictory evidence on the matter as to whether they are in the defendant’s possession, and Claim allowed. I make no order on this part o t the claim. Coos TTS to the plaintiff