In the instruction given to the jury, as above recited, the circuit court in effect holds that the contract between the plaintiff and the defendant may be avoided if the parties had practiced a fraud upon Capt. Grant in inducing him to purchase the property for $8,000. But is it not plain that the agreement between the plaintiff and defendant was not unlawful, nor opposed to public policy ? The counsel for the defendant admits — what surely could not successfully be controverted- — -that any commission, however great, agreed to be paid by the defendant as a compensation for making sale of his land, would not of itself be a fraud upon Grant. For, he says, in that case Grant would have treated with the plaintiff *646as tbe agent of tbe defendant, and bought with bis eyes open ; and had be paid a price larger than tbe defendant was willing to take, it would be bis own folly, but that tbe defendant must nevertheless pay tbe agreed commission. But be argues and insists that on account of tbe confidential relation existing between tbe plaintiff and Grant, each was bound to act towards tbe other with tbe most scrupulous good faith and sincerity; and that in making tbe purchase neither could secure an advantage which tbe other was not entitled to share. The counsel, however, in this argument loses sight of the real issue. This is not a controversy between Grant and the plaintiff, where the former is seeking redress for fraud and imposition practiced upon him by the latter, or by both him and the defendant. That is a different matter, and is independent of this agreement which the plaintiff is seeking to enforce. Eor, as we have already remarked, the contract between these parties was a legal one — not vitiated, as we can see, by the alleged fraud practiced upon Grant. It matters not what fraud and misrepresentation were employed to induce Grant to purchase the property and pay $8,000 therefor, since the cause of action here is unconnected with, or is not founded upon, that illegal transaction. The test is, Was the contract upon which the plaintiff is seeking to recover, void for fraud, or one which springs ex turpi causa f It seems to us that it is not. It is obvious that the defendant is seeking to avail himself of a fraud practiced upon Grant to defeat a recovery upon a valid contract. We assume, for the purposes of the argument, that the conduct of these parties in making the sale to Grant was illegal and fraudulent, for which the law will afford him redress. And yet, if this cause of action is unconnected with the illegal transaction, and is founded upon a distinct and independent contract, it will not be affected by their subsequent unlawful conduct. When this agreement to pay this commission was entered into, the parties had no reference to Grant, nor any other individual. And this agreement was unobjectionable in law or *647morals. But afterwards, in making tbe sale, tbe allegation is, tbe parties were guilty of fraudulent conduct and misrepresentations in inducing Grant to pay $8,000 for tbe property, wben tbe defendant was willing to take $5,000. Suppose they were: let tbem answer, tbcn, to tbe party injured. Tbe maxim relied on by tbe counsel'for tbe defendant, Ex turpi contractu non oritur actio, does not,. as it appears to us, apply to tbe case. Tbe court is not bere lending its aid to enforce the performance of a contract wbicb is illegal, or wbicb is opposed to public policy, or founded upon an immoral consideration. No such objection to the validity of the contract sued on can justly be taken. Tbe fraud wbicb tbe court below seemed to think vitiated this contract, related to another matter and to a different transaction. Tbe maxim above referred to is undoubtedly well established in tbe law, and it is not intended to violate it in this decision. That a court of justice, asa rule, “will not interfere between parties equally guilty, to adjust their controversies and apportion tbe shares to which they are respectively entitled accruing from a fraudulent, illegal and immoral enterprise,” is a doctrine too well settled to admit of controversy. But tbe applicability of that rule to the actual case before us is not apparent. Tbe question presented upon tbe record is quite kindred in principle to tbe questions involved in tbe cases of Dyer v. Horner, 22 Pick., 253; Haney v. Varney, 98 Mass., 118; Brooks v. Martin, 2 Wallace (U. S.), 70; Phalen v. Clark, 19 Conn., 421; Lemon v. Grosskopf, 22 Wis., 447; and Clemens v. Clemens, 28 id., 637; and is well illustrated by tbe discussions there found.
We have confined ourselves to a consideration of tbe applicability and soundness of tbe above charge, and really those are tbe only material questions raised by tbe exceptions. We think the charge was not strictly applicable to the facts, and it was certainly calculated to prejudice tbe case of tbe plaintiff.
Eor these reasons tbe judgment of tbe circuit court must be reversed, and a new trial awarded.
By the Court.— So ordered.