where recovery was allowed on the ground that the purpose of the statute was to secure revenue.94 § 1767. Slight violations of statutory prohibitions. Where the illegality of work done or of materials furnished under a contract is slight, or where judgment for the defendant will impose a severe forfeiture upon the plaintiff, courts are astute to discover ground for allowing the plaintiff to recover. Where the plaintiff contracted to construct a building of combustible materials within fire limits of the city in violation of an ordinance, the plaintiff was denied recovery; 95 but where a contract did not in its terms necessarily involve a violation of building laws, the fact that the plaintiff performed the contract with materials not allowed by law, was held not to preclude recovery.96 § 1768. Statutes purely for revenue. Statutes sometimes impose a tax upon the transaction of certain business merely for the purpose of revenue, and not with any view of limiting or regulating the trade itself. If such 94 See infra, § 1768. 95 Chimene v. Pennington, 34 Tex. Civ. App. 424, 79 S. W. 63. 96 Fox v. Rogers, 171 Mass. 546, 50 N. E. 1041 (commented on, supra, §1761). So recovery for a heating plant was allowed, though the plans had been disapproved by an official inspector whose certificate was required by law and the plaintiff was aware of this. Ordway v. Newburyport, 230 Mass. 306, 119 N. E. 863. In Konig v. Mayor, etc., of Baltimore, 128 Md. 465, 466, 97 Atl. 837, the court said: "Where a contract for the construction of a public filtration plant is entered into by a contractor and a municipality, honestly on both sides, and with no intention of violating the law, and yet the contract is in conflict with the city's charter powers, then, after the work is done, courts should not be zealous in depriving the contractor of his pay or profits, when it is not shown or claimed that it was otherwise than well done, but shown to be of great benefit to the public, and when the taxpayer who brings the suit shows no injury to himself or to the city, and who after merely instituting such a suit used no diligence in bringing it to a conclusion. While ignorance of the law is not a valid excuse, contractors engaged in work all over the country cannot be supposed to keep familiar with every detail of municipal charters." In Josephs v. Briant, 108 Ark. 171, 157 S. W. 136, a contract by which plaintiff was required to procure certain letters and return them to the writer was held not illegal, though it was agreed that they should be transmitted through the mails and they were not mailable under thef ederal statutes. The court considered the method of return merely an incidental matter. statutes merely impose a penalty for failure to comply with their provisions, contracts made without paying the requisite tax or obtaining the requisite license are not thereby made unenforceable. It is to be observed, however, that a statute, though purely for revenue, may, in order to make more certain the collection of revenue, absolutely prohibit and make unlawful all contracts or sales made without compliance with the law.97 It is not always easy to determine whether a statute is purely for revenue and whether, if this is so, the statute prohibits and renders unlawful all contracts and sales made without satisfying its requirements. A number of cases arose under the United States Internal Revenue Laws passed during the Civil War, and it was generally held that these laws were merely for the purpose of revenue and did not render the contract itself unlawful.98 But there are contrary decisions.99 Instances may be found of other penal laws which have been held to be so exclusively for revenue as not to invalidate contracts made by persons who had not satisfied the statutory requirements.1 97 Smith v. Mawhood, 14 M. & W. 452; Hall v. Bishop, 3 Daly, 109; Stevenson v. Ewing, 87 Tenn. 46, 9 S. W. 230. 98 Larned v. Andrews, 106 Mass. 435, 8 Am. Rep. 346; Corning v. Abbott, 54 N. H. 469; Ruckman v. Bergholz, 37 N. J. L. 437; Woodward v. Stearns, 10 Abb. Pr. (N. S.) 395; Rahter v. First Nat. Bank, 92 Pa. St. 393; Aiken v. Blaisdell, 41 Vt. 655. 99 Creekmore v. Chitwood, 7 Bush, 317; Harding v. Hagar, 60 Me. 340, 63 Me. 515; Hall v. Bishop, 3 Daly, 109; Best v. Bauder, 29 How. Pr. 489; Holt v. Green, 73 Pa. St. 198, 13 Am. Rep. 737. 1 Johnson v. Hudson, 11 East, 180 (tobacco dealer without license); Brown v. Duncan, 10 B. &. C. 93 (grain dealer who contrary to revenue regulations carried on a retail business within two miles of a distillery and did not have his name inserted in the excise book as one of the partners in the distillery); Smith v. Mawhood, 14 M. & W. 452 (tobacco dealer without a license); Harris v. Runnels, 12 How. (U.S.) 79, 13 L. Ed. 901 (slave brought into Mississippi and sold there with out formalities required by law); Pangborn v. Westlake, 36 Iowa, 546 (real estate sold before plat recorded as required by law); Mandlebaum v. Gregovich, 17 Nev. 87, 28 Pac. 121, 45 Am. Rep. 433 (traveling salesman sold goods without a license); Strong v. Darling, 9 Ohio, 201 (real estate sold before plat recorded); Fairly v. Wappoo Mills, 44 S. C. 227, 253, 22 S. E. 108, 118, 29 L. R. A. 215, 225 (sale by unlicensed broker). See also Alford v. Creagh, 7 Ala. App. 358, 62 So. 254. In Goldsmith v. Manufacturers' Liability Ins. Co., 132 Md. 283, 103 Atl. 627, the court approved the decision in Banks v. McCosker, 82 Md. 518, 34 Atl. 539, 51 Am. St. 478, where an unlicensed peddler recovered the price of goods sold, and Coates v. Locust, 102 Md. 291, 62 Atl. 625, 5 Ann. Cas. 895, where the court upheld the contract of an unlicensed real estate broker, and said (103 Atl. 628): § 1769. Revenue statutes may invalidate contracts. On a true construction generally even a revenue statute will be found to prohibit contracts made without satisfying the requirements of the law. There can certainly be no doubt that a contract or sale is illegal which, irrespective of the persons who take part in it, itself necessarily involves a breach of a revenue law as a contract to sell liquor without paying the government tax; 2 or goods without payment of customs duties.3 § 1770. Statutes for the protection of the parties. Besides contracts in violation of a statute purely for revenue, there are other statutes which, though they make transactions in violation of them unenforceable, do not make them illegal, "It is settled that, where the contract which the plaintiff seeks to enforce is expressly, or by implication, forbidden by the statute, no court will lend its assistance to give it effect. Cope v. Rowlands, 2 M. & W. 149. By the great weight of authority a contract entered into by an unlicensed person, engaged in a trade, business, or profession required to be licensed, and made in the course of such trade, business or profession, cannot be enforced by such person, if it appears that the license required by the statute is, in whole or in part, for the protection of the public, and to prevent improper persons from engaging in such trade, business, or profession. If, however, the purpose of the statute is to raise revenue only, his right to enforce such contract is not defeated by the want of a license. Elliott on Contracts, § 267; Cope v. Rowlands, 2 M. & W. 149; Randall v. Tuell, 89 Me. 443, 36 Atl. 910, 38 L. R. A. 143; Black v. Security Mutual Life Assoc., 95 Me. 35, 49 Atl. 51, 54 L. R. A. 939; Fairly v. Wappoo Mills, 44 S. C. 227, 22 S. E. 108, 29 L. R. A. 215; Stevenson v. Ewing, 87 Tenn. 46, 9 S. W. 230." In the case before it, however, the Maryland court denied the right of an unlicensed insurance agent to recover for securing an insurance contract to be written by the defendant company, on the ground that the statute requiring the licensing of insurance agents was in part at least for the protection of the public. Cf. with the decisions cited in this section those cited supra, § 1766. 2 Creekmore v. Chitwood, 7 Bush, 317; Curren v. Downs, 3 Mo. App. 468. In North Carolina v. Vanderford, 35 Fed. 376, it was held that a purchaser of whiskey without the stamps or brands required by law had no title which the law would protect and one who destroyed such whiskey was not criminally liable. 3 Biggs v. Lawrence, 3 T. R. 454; Clugas v. Penaluna, 4 T. R. 466; Waymell v. Reed, 5 T. R. 599; Condon v. Walker, 1 Yeates, 483; Mullen v. Kerr, 6 U. C. Q. B. (O. S.) 171. In the case last cited a seller in the United States furnished false invoices for the purpose of evading the Canadian customs duties. Recovery of the price was not allowed. Such a case as Holman v. Johnson, 1 Cowp. 341, where the actual transaction involved no breach of law, but the seller knew the buyer intended to break the law thereafter, must be distinguished. See infra, § 1754. 5 properly speaking. These statutes are intended for the protection of the individual parties to a transaction, rather than for the general protection of the public. Such a statute is the Statute of Frauds; and such is the statute of the United States, requiring contracts with the government to be "reduced to writing and signed by the contracting parties with their names at the end thereof." 3a A contract made without complying with the requirements of these statutes is as completely unenforceable as if it were illegal. But unlike illegal contracts, if the contract is carried out by either party, legal redress may be had for the non-performance of the other party. In the section of the Statute of Frauds relating to the sale of goods, part performance on either side is in terms made a satisfaction of the statute, and, therefore, after such part performance, recovery may be had on the contract itself. Under the Federal statute referred to, the contract remains unenforceable even after full performance by the seller, but as the provisions of the statute are held to be rather for the purpose of compelling governmental officials to comply with statutory directions for the formation of contracts than to render illegal a contract made otherwise, one who has performed a contract where the required formalities were not observed may recover on a quantum meruit or quantum valebat." A Michigan statute prohibiting doing business under an assumed name, though rendering a contract made in violation of it unenforceable by the offending party, does not preclude recovery thereon by one who innocently contracted with him.8 Reference may also be made here to ultra vires contracts of corporations. Lack of corperate capacity should not be confused with illegality. 3a U. S. Comp. St., § 6895. See as to the Statute of Frauds, supra, § 527. As to the Federal statute referred to, see Clark v. United States, 95 U. S. 539, 24 L. Ed. 518; South Boston Iron Co. v. United States, 118 U. S. 37, 6 S. Ct. 928, 30 L. Ed. 69; St. Louis Hay & Grain Co. v. United States, 191 U. S. 159, 24 S. Ct. 47, 48 L. Ed. 130. 5 See supra, §§ 533-537. See supra, § 540. Clark v. United States, 95 U. S. 539, 24 L. Ed. 518; St. Louis Hay & Grain Co. v. United States, 191 U. S. 159, 24 S. Ct. 47, 48 L. Ed. 130; United States v. Andrews, 207 U. S. 229, 243, 52 L. Ed. 185, 28 S. Ct. Rep. 100. 8 Cashin v. Pliter, 168 Mich. 386, 134 N. W. 482, Ann. Cas. 1913 C. 697. See also infra, § 1773. See supra, § 271. § 1771. Contracts of corporations doing business illegally. The laws of the several States almost invariably prescribe certain conditions which must be satisfied before foreign corporations are authorized to do business within the State. Some of these statutes do not expressly provide that no action can be maintained upon contracts or sales made without satisfying the statutory conditions for doing business legally. Such statutes may either provide a specific penalty for doing business illegally or no consequence may be expressed in the statute as a result of violation of the law. A plausible argument has been made in some cases for a difference under statutes of these two types in regard to the effect upon the right of a corporation to sue upon a contract made by it, though it has not complied with that statute. It is suggested that when a penalty is expressly imposed it may fairly be regarded as the only consequence the law meant to impose for violation of the law, but that where the statute merely prohibits without penalty, the contract must be thereby made unenforceable or no punishment would follow a violator of the law. 10 Though careful consideration must be given in each case to the words of the statute in question, the conflicting decisions of the courts do not seem, generally, based on very secure or sound distinctions. In a number of cases it has been held that recovery may be had upon contracts made in violation of laws prohibiting the transaction of business without observance of certain formalities, either with a penalty attached or without such a penalty.11 Other authorities, however, hold that contracts N. E. 1090; Enterprise Brewing Co. v. Grime, 173 Mass. 252, 53 N. E. 855; Gold Issue Mining &c. Co. v. Pennsylvania F. Ins. Co., 267 Mo., 524, 608, 184 S. W. 999 (Colorado law); King v. National Mining Co., 4 Mont. 1, 1 Pac. 727; G. Ober & Sons Co. v. Katzenstein, 160 N. C. 439, 76 S. E. 476; Wright v. Lee, 4 S. Dak. 237, 55 N. W. 931; Eastern Building Assn. v. Snyder, 98 Va. 710, 37 S. E 298; Dearborn Foundry Co. v. Augustine, 5 Wash. 67, 31 Pac. 327; Edison General Electric Co. v. Canadian Pacific Navigation Co., 8 Wash. 370, 36 Pac. 260, 24 10 The statutes and decisions under them are collected in 50 Am. L. Rev. 641. See also Ann. Cas. 1914 A. 702, 24 L. R. A. 315n, 21 L. R. A. (N. S.) 707, 38 id. 210. 11 Northwestern Mutual Life Ins. Co. v. Overholt, 4 Dill. 287; Lasswell Land &c. Co. v. Lee, Wilson & Co., 236 Fed. 322, 149 C. C. A. 454; Thomas Cusock Co. v. Ford, 138 La. 1096, 71 So. 196; Kendrick & Roberts, Inc., v. Warren Bros. Co., 110 Md. 47, 72 Atl. 461; Rogers & Co. v. Simmons, 155 Mass. 259, 29 N. E. 580; Kelly v. RiceBlake Lumber Co., 167 Mass. 28, 44 |