of an illegal act or whether it is merely in furtherance of an illegal object. (4) If merely in furtherance of an illegal object, whether both or only one of the parties knew that the agreement was in furtherance of such illegal object or intended to participate therein. (5) Whether the agreement was illegal at the place of making, although legal at the place of performance, or vice versa. (6) Whether the law has changed between the time of the making and the time of the performance or enforcement of the agreement. § 93. Entire Promise or Entire Consideration Illegal. If either the entire promise or the entire consideration, whether there be more than one promise or more than one consideration, be illegal, the agreement is void. Thus, if one or more promissory notes were given in payment for one or more articles all of which it was illegal to sell, the notes would be void because of the illegality of the entire consideration. Or, if one or more articles which it is legal to sell were delivered in consideration of one or more promises to do illegal acts, the agreement would be void because of the illegality of the promises. § 94. Divisible Considerations. If there are several considerations for several promises, the agreement will be valid in so far as legal considerations were given for legal promises and are divisible from the illegal promises and their considerations. Thus, if A should buy from B a box of cigars for $5, and a bottle of whiskey for $2, and the sale of whiskey was illegal, B could recover the $5 for the cigars because each article was sold for a separate, divisible consideration, and the consideration for the promise to pay $5 was legal. One Consideration, Partially Illegal, for Several Promises. If there is a single consideration, a part of which is illegal, for several promises, the agreement is void because the consideration is not divisible and it is, therefore, impossible to determine what promises were given for the legal portion of the consideration. To come within this principle, it is necessary that the consideration be illegal and not merely void. If part of the consideration is merely void, what remains will support the agreement, for the law will not consider whether it is adequate. Several Considerations, Some Illegal, for Single Promise. Here again it is impossible to say whether the legal or the illegal consideration was what most affected the mind of the promisor and induced the promise.52 Thus if A had promised to pay $7 for the whiskey and the cigars, instead of making separate promises to pay $2 and $5 for each respectively, the agreement would have been void. Legal Consideration for Several Promises, Some Illegal. If the consideration furnished by the promisee is legal and one or more of the promises of the promisor also legal, but the rest illegal, the promisee may waive the illegal promises and enforce the legal promises,53 unless the illegal promise was to do something highly immoral or highly detrimental to the public good.54 This rule is frequently applied to agreements in restraint of trade where the promises are divisible. Thus, an agreement by A not to engage in the manufacture of matches "in the city of St. Louis, or at any other place" would be enforcible as to the promise not to manufacture in St. Louis, but not as to the promise not to manufacture at any other place.55 It should be noted that the applicability of the principle now under consideration depends upon who is the plaintiff. If A had made the promises above mentioned in return for B's promise to pay him a sum of money, A could not have enforced B's promise to pay the money or any part thereof, because of the illegality of one of the two considerations given for B's single promise. On the other hand, B could enforce the promise not to manufacture matches in St. Louis because the consideration fur 52 Trist v. Child, 21 Wall. 441, 22 L. ed. 623. 53 Erie Railway Co. v. Union Loc. and Exp. Co., 35 N. J. Law 240. 54 Lindsay v. Smith, 78 N. C. 328, 24 Am. Rep. 463. 55 Peltz v. Eichele, 62 Mo. 171. nished by him was wholly legal and he might waive the one illegal promise not to manufacture at any other place. § 95. Illegal Contract Made with Innocent Intent. Where the direct object of an agreement is to do an illegal act, the agreement is void, and it is immaterial whether the parties knew that its object was illegal. Ignorance of the law is no excuse where the direct object was illegal. Ignorance of illegality becomes important only where the agreement was, not to do an act illegal in itself, but merely an act intended by one of the parties to be in furtherance of an illegal object. Here the agreement is also void if both parties intended it to be in furtherance of an illegal object, but if only one party had such an intention, the other may have legal rights thereunder. Thus, if one man should agree to erect a building for another man, in which they jointly intend to operate a gambling house, the agreement would clearly be void because of the illegality of the ultimate object even though the contract to build the house was in itself entirely legal. On the other hand, if the man who agreed to build the house were a contractor who had no knowledge of the purpose for which the other party intended to use it, it is perfectly clear that the contract would be valid and enforcible on behalf of the innocent party, but not in favor of the other party. If the innocent party has not performed, he may avoid the contract. Thus, where C agreed to sell to P the menhaden he landed during a certain time at a certain price, it was held that C might subsequently refuse to carry out the contract upon learning that P's purpose in purchasing the menhaden was to sell them under false labels as mackerel and thus perpetrate a fraud upon the public.56 The middle ground between the extremes last considered, that is, where one party to an agreement innocent in itself, intends it to further an illegal object, and the other party merely knows of his illegal design, is one on which the authorities are in conflict. Some cases hold that it is enough that one party knows the unlawful intent of the 56 Church v. Proctor, 66 Fed. 240. other to apply the subject-matter of the contract to an illegal purpose. Thus, where a coach-builder sued a prostitute for money due for the hire of a brougham let out with knowledge that she intended to use it in the furtherance of her immoral trade, it was held that the coachbuilder could not recover.57 This case represents the law in England, but by the great weight of authority in the United States, the mere knowledge of the vendor of property that the vendee intends to use it for an illegal purpose, is not a defense to an action for the price. The prevailing American rule is stated as follows in a Massachusetts case:58 "A sale otherwise lawful is not connected with subsequent unlawful conduct by the mere fact that the seller correctly divines the buyer's unlawful intent, closely enough to make the sale unlawful." If the contemplated illegal act is of a highly heinous character and not merely malum prohibitum or of inferior criminality, it is universally held void where there was mere knowledge of its illegality. Thus, the Supreme Court of the United States has held that contracts to sell supplies which the vendor knew the vendee intended to sell to the Confederates in aid of their cause, were void because of the gravity of the ultimate offense.59 The rule applied where one lends money to another with knowledge that it is to be used for an illegal purpose, as for gambling, it stated in a Maine case where the plaintiff sought to recover a sum of money loaned by him while the defendant was playing a game of cards. "The ruling at the trial was, that if the plaintiff lent the money with an express understanding, intention, and purpose that it was to be used to gamble with, and it was so used, the debt so created cannot be recovered; but otherwise, if the plaintiff had merely knowledge that the money was to be so used. Upon authority and principle the ruling was correct. In order to find the lender in 57 Pearce v. Brooks, (1866) L. R. 1 Ex. 213, 35 L. J. Ex. 134. fault, he must himself have an intention that the money shall be illegally used. The lender must in some manner be a confederate or participator in the borrower's act, be himself implicated in it. He must loan his money for the express purpose of promoting the illegal design of the borrower; not intend merely to serve or accommodate the man."'60 § 96. Agreements Legal in One Place, Illegal in Another. The validity of an agreement is determined by the law of the place where it was made unless it is to be performed in some other place. Then the law of the place of performance will govern. Thus, if an agreement were illegal by the law of the place of making and performance, it will not be enforced in another place, even though it was legal by the law of the latter place. Thus, a note on a gaming consideration, valid where it was made and the transaction took place, is enforcible in a State under whose laws it would have been void. The only exceptions to this rule that an agreement, if valid where made, is valid everywhere, are where it is contrary to good morals, or contrary to the legislation or the public policy of the State in which it is sought to enforce it. Thus, a plural marriage or between near relatives would not be recognized or enforced here because of its immorality, even though legal where consummated.62 In a New Jersey case it was held that an agreement for speculating in stocks, which was valid in New York where it was made, was void and unenforcible in New Jersey because contrary to its public policy as stated by its statutes as to gaming contracts. The governing principle was stated by the court as follows: 63 "A contract valid where made will not be enforced by the courts of another country, if in doing so they must violate the plain public policy of the country whose jurisdiction is invoked to enforce it, or if its enforcement would be 60 Tyler v. Carlisle, 79 Me. 210, 9 Atl. 356, 1 Am. St. Rep. 301. 61 Sondheim v. Gilbert, 117 Ind. 71, 18 N. E. 687, 5 L. R. A. 432, 10 Am. St. Rep. 23. 62 Pennegar v. State, 87 Tenn. 244, 10 S. W. 305, 10 Am. St. Rep. 648. 63 Flagg v. Baldwin, 33 N. J. Eq. 219, 48 Am. Rep. 308. |