specially concurring.
The rule that denies relief to a party to an illegal contract upon the maxim, In pari delicto potior est conditio defendentis, “is adopted, not for the benefit of either party and not to punish either of them, but for the benefit of the public.” Lewis v. Davis, 145 Tex. 468, 477, 199 S.W.2d 146, 151.
“There is often involved, in reaching a decision as to granting or withholding relief, the question whether the policy against assisting a wrongdoer outweighs the policy against permitting unjust enrichment of one party at the expense of the other. The solution of the question depends upon the peculiar facts and the equities of the case, and the answer usually given is that which it is thought will better serve public policy. Graham v. Dean, 144 Tex. 61, 188 S.W.2d 372; Scott’s The Law of Trusts, Vol. 3, pp. 2196-2197, Sec. 422; Benefits under Illegal Transactions, by John W. Wade, 25 Texas Law Review, pp. 31-62.”
*310“A test, sometimes used in determining whether a demand connected with an illegal transaction can be enforced, is whether the plaintiff requires any aid from the illegal transaction to establish his case. Floyd v. Patterson, 72 Tex. 202, 10 S.W. 526, 13 Am.St.Rep. 787; Pioneer Mutual Compensation Corp. v. Diaz, 142 Tex. 184, 177 S.W.2d 202.”
When the thing contracted to be done violates the public policy of the state, as the encouragement of immoralities or -other prohibited vices, agreements to pay, Hayes v. G. A. Stowers Furn. Co., Tex.Civ.App., 180 S.W. 149 or promissory notes, Anderson v. Freeman, Tex.Civ.App., 100 S.W. 350, made as parts of the immoral transaction, may not be recovered upon.
It is settled law in Texas that notes given for unlawful services or for the doing of unlawful things, or things contrary to the public policy of the state, will not be enforced as between the parties. 10th Texas Jurisprudence, Secs. 248-9, par. 142 & 143; Park v. Coulson, Tex.Civ.App., 139 S.W.2d 667.
The undisputed 'facts in this case establish that plaintiff and defendant were both actively engaged in subverting the public policy of Texas and that plaintiff’s case can not be enforced -except by reliance upon the illegal consideration for the notes. Tt is quite clear, therefore, that under the settled law of Texas, the district judge was right in denying.recovery on the notes.