the penalized act. Other elements will always be considered, such as the evil sought to be prevented, and whether the penalty was provided to protect the public health and morals or merely to protect the public revenue. Thus, a contract involving the practice of medicine by one who was not a licensed physician would be illegal even though only a penalty were provided, because it affects the public health, but a sale of a lot in an addition to which the plat was unrecorded would not be illegal and void, because a statute imposed a penalty for such transactions.1 The law is stated by the Supreme Court of Iowa in the case last cited, as follows:

"While, as a general rule, a penalty imposes a prohibition, yet the courts will always look to the language of the statute, the subject matter of it, the wrong or evil which it seeks to remedy or prevent, and the purpose sought to be accomplished in its enactment; and if, from all these, it is manifest that it was not intended to imply a prohibition or to render the prohibited act void, the courts will so hold, and construe the statute accordingly.'

§ 80. Particular Statutes. Relative to Professions, Trades, Etc. Falling within this class are statutes prohibiting the practice of medicine or law or other professions without first being duly licensed. One who has not been duly licensed cannot recover for services or upon agreements for such services. Statutes which prohibit the employment of minors in certain trades or occupations, prevent the father from recovering the wages of a child so employed.2 Statutes requiring the licensing of brokers prevent one not duly licensed from recovering an agreed commission for procuring a purchaser for land, and the same rules have been applied where a license was required for a school teacher, a plumber, an innkeeper, a conveyancer, and a stockbroker. Statutes requiring the inspection

1 Pangborn v. Westlake, 36 Ia. 546, 549.

2 Birkett v. Chatterton, 13 R. I. 299, 43 Am. Rep. 30.

8 Buckley v. Humason, 50 Minn. 195, 52 N. W. 385, 16 L. R. A. 423, 36 Am. St. Rep. 637.

and certification of articles of commerce to protect the public against impure foods, poisons, and adulterations, make dealings in such articles illegal where the statute has not been complied with. A contract for the purchase of intoxicating liquors is invalid where a statute forbids sale of the same, and one who leases a building for the sale of intoxicating liquors sold contrary to statute, cannot recover on such lease or for the use and occupation of the building.*

Effect of Sunday Laws. The making of contracts on Sunday was not prohibited by the common law, but has been affected in most States by statutory enactment. These statutes differ widely in their provisions. Where the statute expressly prohibits the making of agreements on Sunday, there is no question that an agreement made on Sunday is void, and the same rule usually holds where the statute is against the carrying on of "any business". But where the words of the statute are that no "work or labor" is to be done on Sunday, it is necessary that the act be toilsome or laborious, and thus the making of an agreement or execution of a promissory note or mortgage would not be illegal. Some statutes contain a prohibition against work, labor, or business, or following a man's "ordinary calling". Under such statutes contracts made or work or business done on Sunday are not illegal if outside of a man's calling, and, therefore, a sale or purchase of goods on Sunday by one not a merchant or a trader would not be illegal.

Works or necessity or charity are generally express exceptions to the prohibitions of Sunday statutes. "By the word 'necessity' in the exception we are not to understand a physical and absolute necessity; but a moral fitness or propriety of the work and labor done, under the circumstances of any particular case, may well be deemed necessity within the statute." Whatever must be done on Sunday, if at all, in order to preserve life, health, or property,

4 Mitchell v. Scott, 62 N. H. 596.

5 Bloom v. Richards, 2 Ohio St. 387.

Flagg v. Inhabitants, 4 Cush. (Mass.) 243, 244.

is a work of necessity, and any act connected with religious worship or the relief of suffering or distress is an act of charity. Church subscriptions made on Sunday are enforcible,' but publishing and circulating a newspaper on Sunday is not a work of necessity. An agreement which is partly made or the terms agreed upon on Sunday is not illegal if its execution does not take place until a later week day. Thus, a written instrument which was written and signed on Sunday is valid if not delivered until Monday, because delivery was necessary to its validity.

Effect of Usury Laws. At common law a man could lawfully contract for any rate of interest in the absence of fraud or oppression, but in most States there are laws affecting the legality of contracts for interest above certain specified rates. The statutory provisions as to the effect of usurious agreements are not uniform. Some provide that the whole agreement is void, others provide that the whole amount of the interest is forfeited, and in some States it is provided that only the excess above the legal rate is forfeited. Attempts to avoid violation of usury laws by agreements to pay commissions or expenses are unavailing unless the one making the loan be a licensed broker or the expenses be real and not fictitious.10

AGREEMENTS IN VIOLATION OF COMMON LAW

§ 81. Wagers. A wager is a promise to give money or money's worth upon the determination or ascertainment of an uncertain event or fact, the consideration for the promise being either a present payment of money or delivery of money's worth or a promise to pay or deliver upon the event or fact being determined or ascertained in a particular way. It is essential to a wager that there be mutual chances of gain and loss, and the uncertain event or fact must be the only thing to determine the result. If A bets $5 to nothing that B will not return A's lost watch, it is not

7 Allen v. Duffie, 43 Mich. 1, 4 N. W. 427, 38 Am. Rep. 159.

8 Handy v. St. Paul Co., 41 Minn. 188, 42 N. W. 872, 16 Am. St. Rep. 695. 9 King v. Fleming, 72 Ill. 21, 22 Am. Rep. 131.

10 Sorenson v. Lumber Co., 98 Ill. App. 581.

a wager but simply an offer of a $5 reward for the return of his watch by B, for there is no opportunity for B to lose.

The meaning of the term wager has been confused by its association with the term "bet", which implies a purely gambling transaction. Wagers include insurance contracts also. At common law wagers were enforceable except where contrary to good morals or public policy or where calculated to injure some third person, and this is still the law in some States.11 Thus, an agreement that the beaten party in a squirrel hunt pay for the supper, and wagers as to the result of an election after the vote was cast but before the result was known,12 and as to the weight of a dressed hog,13 have been enforced. In the large majority of States all wagering contracts in which the parties have no valuable interest are now prohibited. These statutes differ greatly among themselves, so that their consideration is impossible here.

12

Insurance Contracts. Like other wagering contracts, contracts of insurance were valid at common law and this is now true in most States, except that it is generally held that the insured must have an interest in the life or property insured. If no loss, only gain, could result from the loss or damage of the subject matter of the insurance, the contract would be void on grounds of public policy, and, in general, it may be said that an insurable interest exists where the insured is so situated that he would suffer a loss in case of the death, destruction, or damage to the life or property covered.14

§ 82. Future Delivery of Goods. Whether an agreement of A to sell B a certain amount of certain merchandise or stocks at a certain price at certain future time, is a contract which is legally enforcible, or is a mere gambling contract, depends on whether one or both of the parties intended an actual delivery of the merchandise or stocks, or whether they both intended merely a payment of the difference

11 Winchester v. Nutter, 52 N. H. 507, 13 Am. Rep. 93.

12 Smith v. Smith, 21 Ill. 244, 74 Am. Dec. 100.

18 Mulford v. Bowen, 9 N. J. Law 315.

14 See article on Insurance.

between the market and contract prices without any actual delivery of the goods sold. In the latter event the agreement is merely a gambling transaction and is wholly void.15 Where such agreements have not been declared illegal by statute, the same result is reached by the courts on grounds. of public policy.16

A lottery is another form of gambling agreement which is uniformly declared illegal by statute.

§ 83. To Commit Crime or Civil Wrong. Many of the rules of the common law are now in force as statutory enactments and, therefore, the above classification is only approximate. An agreement which involves the commission of a crime is void as a breach of the common law. Thus, an agreement to assault or to kill a person or to write or publish a criminally libellous book or to burn a house, would be void because of involving the commission of some act which was a crime at common law. The agreement is itself a crime, known as "conspiracy".

An agreement which involves the doing of something which is a civil wrong to some third person, but not a crime, is also void. Thus, a conveyance of property by a debtor for the purpose of escaping payment of his debts, is void as to his creditors. A secret promise of a debtor to one of his creditors to pay him more than his share in order to obtain his consent to a composition agreement, is void as a fraud.17

Agreements involving a fraud on the public are likewise void. Thus, an agreement is void which involves the use of the name of a musical director for a band with which he is not connected,18 or an agreement by which domestic sardines are to be packed in boxes representing them to be imported.19

15 Harvey v. Merrill, 150 Mass. 1, 22 N. E. 49, 5 L. R. A. 200, 15 Am. St. Rep. 159.

16 Flagg v. Gilpin, 17 R. I. 10, 19 Atl. 1084.

17 Powers Dry Goods Co. v. Harlin, 68 Minn. 193, 71 N. W. 16, 64 Am. St. Rep. 460.

18 Blakely v. Sousa, 197 Pa. 305, 47 Atl. 286.

19 Materne v. Horwitz, 101 N. Y. 469, 5 N. E. 331.