DISSENTING OPINION OP
ROBERTSON, C.J.I think there is nothing to be gained by a re-trial of this case. The essential facts of the case are uncontradicted and either the plaintiff or the defendant should have judgment according to what the law is as applied to those facts. The story is a simple one. The defendant informed the United States district attorney that a Chinaman had expressed a desire to buy somfe-opium. The district attorney furnished the defendant three tins of contraband opium to sell to the plaintiff in order that he might be caught and arrested upon a charge of violating the federal statute which prohibits (except for medicinal purposes under certain regulations) the importation of and traffic in opium. The plaintiff was proceeding in violation of the statute. The transaction has been referred to as a sale but it is perfectly plain that it was only a trap, and that there was no intention that any right of property in the opium or any beneficial use thereof was to be given to the plaintiff. He was to be immediately arrested and the opium taken from him. The scheme contemplated that money was to be accepted from the *524plaintiff but it was arranged, that be should get nothing for it. The plan succeeded and the object was accomplished. The plaintiff was defrauded out of $114. If the plaintiff is entitled to maintain this action because of a fraud perpetrated on him by the defendant, irrespective of the defendant’s purpose, the judgment should be affirmed at once for the evidence is uncontradicted that the plaintiff was defrauded of his money. Surely, there is no need of another trial to enable the plaintiff, if possible, to aggravate the fraud.
An action in affirmance of an illegal transaction or contract cannot be maintained but one in disaffirmance of it may be. The maxim In pari delicto will not be applied so as to prevent a recovery where the plaintiff is shown to have been the victim of the positive fraud or imposition of the defendant and the transaction in which they were engaged was not malum in se. In such cases relief is sometimes granted even though the plaintiff shows himself to be substantially in equal fault as to the main transaction. There is abundant authority for the proposition that when one has by fraud induced another to pay him money he may not refuse to return it on the ground that both parties'had an illegal end in view in the transaction, and that the plaintiff was in pari delicto. The defendant in such a case will not be allowed to profit by his own fraud. Catts v. Phalen, 2 How. 376; National Bank & Loan Co. v. Petrie, 189 U. S. 423; In re E. J. Arnold & Co., 133 Fed. 789; Stewart v. Wright, 147 Fed. 321; Hinsdill v. White, 34 Vt. 558. In the case at bar the action is in disaffirmance of the illegal transac- • tion and proceeds upon the theory that the law has raised an implied promise on the part of the defendant to re-pay to the plaintiff the sum paid for the opium. But will the law, under the facts of this case, imply such a promise ? I think not. Assuming, without conceding, that the plaintiff has a cause of action against the defendant, and assuming that in certain cases-a plaintiff may waive a tort and sue in assumpsit upon one or more of the common counts notwithstanding that our statute *525(R. L. Sec. 1712) contemplates that in actions upon unliquidated demands the plaintiff’s complaint shall “set forth the cause and manner in which the injury was done circumstantially with a view to proof,” the question is whether in a case like this the plaintiff may waive the tort and maintain an action of assumpsit for money had and received. Here, the defendant did not convert the plaintiff’s money to his own use. He neither sought nor made any profit or gain out of the transaction. Neither did the district attorney. The money which came into their hands as an incident to the scheme to entrap the plaintiff passed as through a conduit to the United States treasury.
To maintain assumpsit for money had and received it is necessary to establish that the defendant has received money belonging to the plaintiff which in equity and good conscience he should return. It is not sufficient to show that the defendant has by fraud or other wrong caused the plaintiff loss or damage. “A party may in some cases waive a tort, that is, he may forbear to sue in tort, and sue in contract, where the matter out of which his claim arises has in it the elements both of contract and tort. But it has been well said that ‘a right of action in contract cannot be created by waiving a tort, and the duty to pay damages for a tort does not imply a promise to pay them, upon which assumpsit can be maintained. Cooper v. Cooper, 147 Mass. 370, 373.’ ” Bigby v. United States, 188 U. S. 400, 409. In order to maintain an action of assumpsit where damage has been caused by a trespass the implied contract must be predicated on the “duty to disgorge the proceeds of an unlawful acquisition, and not upon the mere general duty to compensate for injury done,” and “it is- essential that there should be an unjust enrichment of the estate of the tortfeasor.” 3 Street, Foundations of Legal Liability, 197, 200. Tillman v. Spencer, 2 Haw. 178, 182; Downs v. Finnegan, 58 Minn. 112. The rule is a general one and includes cases in which fraud or other wrong forms the gravamen of the plaintiff’s case. “Assuming a defendant to be a tortfeasor, in order that the doctrine *526of waiver of tort may apply, the defendant must have unjustly enriched himself thereby. That the plaintiff has been impoverished by the tort is not sufficient. If the plaintiff’s claim, then, is in reality to recover damages for an injury done, his sole remedy is to sue in tort.” Keener on Quasi-Contracts,. 160. National Trust Co. v. Gleason, 77 N. Y. 400; New York Guar. & Ind. Co. v. Gleason, 78 N. Y. 503; Patterson v. Prior, 18 Ind. 440.
In the case at bar the plaintiff repudiates, as he must, the illegal transaction in which he engaged with the defendant, and seeks reparation for the tort by which he was damaged to the extent of $114. Without saying that the plaintiff has another remedy, it is clear that as the defendant or his principal, the district attorney, made no gain out of the affair, the law has raised no implied promise on the part of the defendant upon which indebitatus assumpsit can be predicated.
If the view' I take of the case is the correct one the defendant’s motion that the jury'be instructed to find a verdict for the defendant should have been granted, and the case should now be remanded with instructions to enter judgment for the defendant.