¶1 dissenting:
¶2 I think it is comparatively clear that the purpose of L. M. Workman having his wife procure from Dr. Lewis in 1941 a statement of account showing that Workman owed Lewis the sum of four hundred and sixty-one dollars was to present to the International Nickel Company what he, Workman, believed to be a false statement in order to procure from the company a loan of that amount under that company’s highly wholesome plan of loaning its employees the money necessary to tide them over financial crises, among which is the payment of doctors’ bills. According to the testimony, Dr. Lewis in giving Mrs. Workman the statement made no comment, although she had told him for what purpose it was to be used.
¶3 As a matter of fact the statement that Lewis gave to Mrs. Workman was true and accurate. When Workman went through bankruptcy in 1935 he owed Dr. Lewis three hundred dollars. Bankruptcy does not cancel an indebtedness, but simply renders it legally unenforceable. Interest on three hundred dollars from 1935 to 1941 is one hundred and eight dollars, so that when the amount of fifty-three dollars that Workman then owed Lewis for recent services is added to the principal and interest upon the amount he owed' when he went through bankruptcy, the exact sum stated by Dr. Lewis as being Workman’s indebtedness of four hundred and sixty-one dollars is the sum. There was no misstatement in Dr. Lewis’s bill, although it is likely that Workman believed it to be false.
¶4 By the use of the correct statement Workman procured the sum of four hundred and sixty-one dollars as a loan from the Nickel Company. That company, probably in order to prevent exactly what Workman believed he was perpetrating, so far as possible, sent its check, to the creditor. Dr. Lewis simply refused to surrender it and applied the amount to the Workman indebtedness.
¶5 I believe that the majority has misapplied the maxim, “in pari delicto potior est conditio defendentis”. Here Dr. *13 Lewis is the defendant and Workman is the plaintiff. The plaintiff is being permitted to put into effect, through the courts, exactly the fraudulent misrepresentation that he believed he was perpetrating upon International Nickel Company. As a matter of fact no fraud was perpetrated and no misstatement was made to the company by Workman. He simply believed that he was telling an untruth, thinking that going through bankruptcy wiped out, in every way, his debts. Instead, the Lewis statement of fact was correct. The money went to Dr. Lewis who had not expressly obligated himself to turn it over to Workman. Perhaps he should not have remained silent, in the face of Mrs. Workman’s voluntary assurances, but acquiescence in a true statement when a fraudulent misstatement is the purpose I do not believe involves the maxim, “in pari delicto” nor do I believe that it is opposed to public policy, certainly not to the extent that cheating under the helpful credit setup of International Nickel Company is. I would affirm the trial court which denied recovery.