A party to a contract, the making of which, although prohibited by law, is not malum in se, may, while it remains executory, rescind and recover back money advanced thereon to the other party who had not performed any part of the contract.
In an action to recover money paid under a repudiated contract, defendant promoter appealed from a judgment for plaintiff contestant. The promoter contended that the contract was illegal. The promoter conducted a contest that was operated by its agent. The agent induced the contestant to pay money for a chance to win an automobile. The contestant later learned that the contest was illegal and repudiated the contract. The promoter contended that it was not responsible for return the contestant's money because the contract was for a fraudulent scheme.
Did a contestant seasonably and rightfully rescinded the contract and become equitably entitled to recover his entry fee?
The court affirmed the judgment for the contestant. The court held that the contestant seasonably and rightfully rescinded the contract and was equitably entitled to recover back his money because the action was not to recover money obtained by fraud but to recover back money received and retained without consideration.
The court affirmed the judgment for the contestant.