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consideration; but in a few cases courts have refused to give effect to contracts which they deemed repugnant to their local policy, although such contracts would have been enforced in the State in which they were made.2

As in Williams v. Carr, 80 N. C. 294; Tredway v. Riley, 32 Neb. 495, 49 N. W. R. 268, 29 Am. St. R. 447.

So the court of one State will enforce the statute of another State in which the contract is to be performed. Osgood v. Bauder, 75 Iowa, 550, 1 L. R. A. 655, 47 N. W. R. 1001. 2 In Flagg v. Baldwin, 38 N. J. Eq. 219, 48 Am. R. 308, a contract made in New York and valid there was refused enforcement in New Jersey because opposed to the policy of that State. So, under a statute, in Mississippi. Lemonius v. Mayer (1893), 71 Miss. 514, 14 S. R. 53. So in South Carolina. Gist v. W. U. Tel. Co., 45 S. C. 344, 23 S. E. R. 143.

In Schlee v. Guckenheimer (1899), 179 Ill. 593, 54 N. E. R. 302, the court said: "By the common law, contracts of this character are valid, as under the common law a contract to have or give an option to sell or buy, at a future time, grain or other commodity was neither voidable nor void. Schneider v. Turner, 130 Ill. 28. The first two special counts allege a breach of this contract, and specially aver that it was valid when made, in the State of Ohio. The additional count avers the contract was a legal and binding contract in the State of Ohio, where the same was entered into and was to be executed. Courts do not, as a rule, take judicial notice of the laws of another State or country, and their statutes or local usages must be averred and proven when relied on to aid in sustaining a cause of action or defense

in this State. Such is not the rule, however, in reference to the common law, which, in the absence of proof to the contrary, will be presumed to prevail in the States of the Union. On a common-law question, therefore, the courts of one State will assume that the common law is in force in a sister State, unless proof to the contrary is made. Crouch v. Hall, 15 Ill. 263. Under the averments of this declaration this suit is brought on a contract which was valid at common law and will be presumed to be valid in the State of Ohio, where it was made and to be executed. The common law would govern the construction of the contract, as the principle is, the lex loci governs in ascertaining whether the contract is valid and what it means. Shurman v. Gassett, 4 Gilm. 521; Woodward v. Brooks, 128 Ill. 222; Mineral Point R. Co. v. Barron, 83 id. 365.

"Where a contract is legal and binding in the State where made and is to be executed and was to be performed, the courts of this State will, upon the principle of comity, enforce the lex loci contractus (Hone v. Ammons, 14 Ill. 29; Roundtree v. Baker, 52 id. 241), where such agreement will not be dangerous, inconvenient, immoral, or contrary to the public policy of the lex fori. Phinney v. Baldwin, 16 Ill. 108; McAllister v. Smith, 17 id. 328; Mumford v. Canty, 50 id. 370. By his demurrer the defendant admits the contract was valid and binding in the State of

II.

INVALIDITY BY STATUTE.

§ 1044. What enactments render a sale void.— An attempted sale may also be rendered invalid by reason of a statute designed to prevent such sales. Such statutes may take a variety of forms: Thus, the statute may expressly declare that

Ohio, and the only question that arises must depend on whether the contract violates the public policy of this State or is in violation of its laws. That question must depend upon the construction of section 130 of the Criminal Code, as applicable to the facts of this case as presented by this contract.

"By the contract appellee sold five cars of sample B barley at sixty-two cents a bushel and five cars of sample C barley at fifty-seven cents a bushel, to be delivered at Columbus, Ohio, for cash, shipments to be made on October 10 and 15, 1887. This violated no provision of the statute nor any rule of the common law, and was acted on by the parties and carried out. It was a contract of sale, with a particular time of performance, at a specified price of a particular commodity, to be delivered at a specified place, the failure to comply with which contract by the seller or buyer would authorize the other to have his action for such non-compliance. These five cars of each grade are by the contract, declared to be sample cars, and when 'received, weighed and examined and found satisfactory, Mr. Schlee has the privilege to order ten thousand bushels more of each grade, same price, any time to December 31, 1887.' This clause alone does not amount to a contract. It is a mere offer to sell ten thousand bushels each of two different grades

of barley, according to sample, at a specified price for each grade, the offer to be accepted by a specified time. The clause does not constitute a contract for an option, such as that in Schneider v. Turner, 130 IL 28. The contract in that case was: 'In consideration of $1, and other valuable considerations, receipt of which is hereby acknowledged, I hereby agree to sell, etc., 1,785 shares of cap‐ ital stock, etc., at $600 per share,' etc., which was clearly a contract for an option.

"This proposition or offer is similar to every-day business transactions among the people of this State with reference to every character of commodities purchased for use. The offer to sell such a commodity at a specified price, if accepted by a specified time, does not constitute a violation of the statute. Its acceptance within that time is not prohibited or made à criminal offense, but is an everyday transaction necessary in carrying on business. There is nothing in this contract that is prohibited by the laws of this State, and hence it is not void. Nothing that was said in Pope v. Hanke, 155 Ill. 617, would require us to hold its provisions void. In that case the court found that the contract then before the court was a mere gambling contract, and was prohibited by the policy and laws of this State."

all sales made in contravention of it shall be illegal or void;1 it may forbid the sale and impose a penalty without expressly declaring the sale void; or it may simply impose a penalty upon the seller in case he makes a sale without, in terms, forbidding it. In the first case there can be no room for question as to the legislative intention, and the attempted sale must be held to be a nullity with all that that implies. In the other cases there may be room for doubt whether, under a particular statute, the sale itself is void, or whether, merely, the seller has not subjected himself to the penalty, leaving the sale valid. It may be said of one statute that it was designed to prohibit the sale, but of another that the statute was designed simply to secure revenue from sales which in themselves are left completely valid. Much difference of opinion has existed and somewhat arbitrary rules have been laid down upon this subject.

§ 1045.. It has been said that wherever a penalty is imposed a prohibition is implied; but the true rule seems to be that, while ordinarily a penalty implies a prohibition, the court will always look to the language of the statute, the subjectmatter of it, the wrong or evil which it seeks to remedy or

1 See Anson on Contracts (7th ed.), 185; Rossman v. McFarland (1859), 9 Ohio St. 369.

the sale. See also Law v. Hodgson, 2 Camp. 147; Foster v. Taylor, 3 Nev. & Man. 244; Bensley v. Bignold, 5 B.

2 See Aiken v. Blaisdell (1869), 41 & Ald. 335; Drury v. Defontaine, 1 Vt. 655.

3 See Anson, Contracts, supra. 4 Woods v. Armstrong (1875), 54 Ala. 150, 25 Am. R. 671, and note, contains a very full collection of the cases to the effect that "a penalty inflicted by statute upon an offense implies a prohibition, and a contract relating to it is void, even where it is not expressly declared by the statute that the contract shall be void." But Woods v. Armstrong and most, if not all, of the cases referred to were dealing with statutes designed to secure protection to the public or individuals against fraud or imposition in

Taunt. 131; Hallett v. Novion, 14 Johns. (N. Y.) 273; Wheeler v. Russell, 17 Mass. 258; Harris v. Runnels, 12 How. (U. S.) 80, 13 L. ed. 901; Youngblood v. Birmingham Trust Co., 95 Ala. 521, 20 L. R. A. 58, 12 S. R. 579; Shippey v. Eastwood, 9 Ala. 198; Robertson v. Hays, 83 Ala. 290; Moog v. Hannan, 93 Ala. 503, 9 S. R. 596; Bisbee v. McAllen, 39 Minn. 143, 39 N. W. R. 299; Miller v. Post, 1 Allen (Mass.), 434; Mitchell v. Smith, 1 Bin. (Pa.) 110, 2 Am. Dec. 417; Pray v. Burbank, 10 N. H. 377; Durgin v. Dyer, 68 Me. 143; Naglebaugh v. Mining Co., 21 Ind. App. 551, 51 N. E. R. 427.

prevent, and the purpose sought to be accomplished in its enactment; and if from all these it is evident that it was not the intention to imply a prohibition or render the prohibited act void, the court will so declare and uphold the sale. If the statute does not declare a contract made in violation of it to be void, and if it is not necessary to hold the contract void in order to accomplish the purposes of the statute, the inference is that the statute was intended to be directory to the officers or persons contemplated, rather than prohibitory of the contract.2

& 1046. Further of their construction.- Considerations of the revenue, or of public or private protection against imposition or fraud, are of course material in determining the

1 This is substantially the language of Pangborn v. Westlake, 36 Iowa, 546, and is quoted with approval in Miller v. Ammon (1892), 145 U. S. 421, 36 L. ed. 759, 12 Sup. Ct. R. 884.

In Harris v. Runnels (1851), 12 How. (U. S.) 80, 13 L. ed. 901, it is said: "It is true that a statute containing a prohibition and a penalty makes the act which it punishes unlawful, and the same may be implied from a penalty without a prohibition; but it does not follow that the unlawfulness of the act was meant by the legislature to avoid a contract made in contravention of it. When the statute is silent. and contains nothing from which the contrary can be properly inferred, a contract in contravention of it is void." This language also is quoted with approval in Miller v. Ammon, supra.

v. Hudson, 11 East, 180) between those statutes which were designed for the protection of the revenue and those designed for the protection of the public has been said (Note, 25 Am. R. 675, and per Wayne, J., in Harris v. Runnels, 12 How. 80) to be overruled by Cope v. Rowlands, 2 Mees. & Wels. 149. It is believed, however, with all deference, that this conclusion has been reached by too hasty a reading of the opinion by Baron Parke. The conclusion attributed to him begs the very question which he was seeking to decide, as is evident from the emphasis which he gives to certain expressions. He says "that if the contract be rendered illegal, it can make no difference, in point of law, whether the statute which makes it so has in view the protection of the revenue or any other object." This is obviously true, but the very question is whether "the contract" has been rendered illegal, and this the 3 The distinction made in the ear- learned judge admits in the next lier English cases (such as Brown v. sentence. "The sole question is Duncan, 10 B. & C. 93, and Johnson whether the statute means to pro

2 This is substantially the language of Bowditch v. New England Life Ins. Co. (1886), 141 Mass. 292, 55 Am. R. 474, 4 N. E. R. 798.

legislative intent, though not necessarily conclusive of it.1 But wherever the statute is aimed at the protection of individuals

. .

hibit the contract." He then refers to certain of the earlier cases and then proceeds to apply the very distinction which he is thought to have overruled. "The question for us,” he says, "now to determine is whether the enactment of the statute is meant merely to secure a revenue to the city, and for that purpose to render the person acting as a broker liable to a penalty if he does not pay it; or whether one of its objects be the protection of the public and the prevention of improper persons acting as brokers." The italics are his. Revenue Acts.-The distinction between mere revenue acts and statutes for protection is also clearly made and applied in Mandelbaum v. Gregovich, 17 Nev. 87, 45 Am. R. 433, 28 Pac. R. 121. See also Niemeyer v. Wright, 75 Va. 239, 40 Am. R. 720; Eberstadt v. Jones, 19 Tex. App. 480, 48 S. W. R. 558; Larned v. Andrews (1871), 106 Mass. 435, 8 Am. R. 346; Aiken v. Blaisdell (1869), 41 Vt. 655; Ruckman v. Bergholz (1874), 37 N. J. L. 437; Corning v. Abbott (1874), 54 N. H. 469. It is also well put by that learned judge, Bronson, in Griffith v. Wells, 3 Denio (N. Y.), 226, as follows: "When a license to carry on a particular trade is required for the sole purpose of raising revenue, and the statute only inflicts a penalty by way of securing payment of the license money, it may be that a sale without a license would be void. But if the statute looks beyond the question of revenue, and has in view the protection of the public health or morals, or the prevention of frauds by the seller, then, though there be nothing but a penalty, a contract

which infringes the statute cannot be supported."

1 The distinction is very clearly made by Morton, C. J., in Bowditch v. New England L. Ins. Co., 141 Mass. 292, 55 Am. R. 474, 4 N. E. R. 798, as follows: "It is a rule universally accepted that if a statute prohibits a contract in the sense of making it unlawful for any one to enter into it, such a contract, if made, is wholly void, and cannot be enforced. But it is often a difficult question to determine whether a statute forbidding an act to be done, or enjoining the mode of doing it, is prohibitory, so as to make any contract in viola. tion of it absolutely void, or whether it is directory in its purpose, and does not necessarily invalidate the contract. Though it may be impossible to formulate a rule which will reconcile all the adjudications, yet the decisions recognize a clear distinction between these two classes of cases. There is a large class of cases, both in this country and in England, in which statutes have enacted, in substance, that goods should only be sold in certain measures, or in a certain manner, or after being inspected and branded by public officers; and it has been held that contracts of sale which do not meet the requirements of such statutes are absolutely void. The purpose of such statutes is to protect the buyer from the imposition of the seller - a purpose which would be wholly thwarted unless the contracts are held void, and therefore the intention of the legis lature to make them void is inferred. Miller v. Post, 1 Allen, 434, and cases cited; Libbey v. Downey, 5 Allen,

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