We come now to the second branch of the subject of illegality in contract - its effect upon the validity of a contract. The effect of illegality upon the validity of contracts in which it appears varies according to the circumstances. It may affect the whole, or only a part, of a contract, and the legal and illegal parts may or may not be capable of separation. The direct object of a contract may be the doing of an illegal act, or the direct object may be innocent, though the contract is designed to further an illegal purpose. The parties may both be ignorant, or both be aware, of the illegality which remotely or directly affects the transaction; or one may be innocent of the objects intended by the other. Securities may be given for money due upon, or money advanced for, an illegal transaction, and the validity of such securities depends upon various considerations. Finally, though the contract is illegal, certain considerations may require that some relief be granted to one of the parties, notwithstanding his fault. This is a very complex and difficult branch of the law, and on some of the questions suggested there is a conflict of opinion. All we can do is to state the general principles which govern, and call attention to those points on which there is a conflict73
175. Where an agreement is illegal in part only, the part which is good may be enforced, provided it can be separated from the part which is bad, but not otherwise. In detail: (a) An indivisible promise to do several acts, some of which are illegal, or a single promise to do a legal act, based on several considerations, one of which is illegal, is wholly void.
477, 17 Am. Rep. 452; Bartlett v. Same, 62 Me. 218. 16 Am. Rep. 437; Western Union Telegraph Co. v. Chamblee, 122 Ala. 428, 25 South. 232, 82 Am. St. Rep. 89. See "Telegraphs and Telephones," Dec. Dig. (Key-No.) § 54; Cent. Dig. §§ 39-47.
77 Sweatland v. Telegraph Co., 27 Iowa, 433, 1 Am. Rep. 285. See "Telegraphs and Telephones," Dec. Dig. (Key-No.) § 54; Cent. Dig. §§ 39-47.
78 Anson, Cont (4th Ed.) 189.
(b) But where distinct promises, some of which are good, are based on a good consideration, or where there are distinct promises based on several distinct considerations, some of which are good, the good promises, or promises based on good considerations, may be enforced.
An agreement may consist of a single promise based on a single consideration. If either the promise or the consideration is illegal, there is no difficulty in pronouncing the agreement void.79 On the other hand, there may be several promises or considerations, some of which only are illegal, and in these cases the agreement may or may not be wholly void, according to the circumstances. Whether it is wholly void or not will depend upon whether it is one entire and indivisible agreement, or whether it is divisible, so that the good may be separated from the bad. "If any part of an agreement is valid, it will avail pro tanto, though another part of it may be' prohibited by statute; provided the statute does not, either expressly or by necessary implication, render the whole void; and provided, furthermore, that the sound part can be separated from the unsound, and be enforced without injustice to the defendant." 80 "If the part which is good depends upon that which is bad, the whole is void; and so I take the rule to be if any part of the consideration be malum in se, or the good and void consideration be so mixed, or the contract so entire, that there can be no apportionment." 81
At one time a distinction was made in the application of this principle between illegality by reason of a statute and illegality at common law. The judges, fearing that statutes might be eluded, laid it down that "the statute is like a tyrant - where he comes he makes all void; but the common law is like a nursing father - makes only void that part where the fault is, and preserves the rest." Such a distinction, however, is no longer recognized.82
79 Dennehy v. McNulta, 86 Fed. 825, 30 C. C. A. 422, 41 L. R. A. 609. See "Contracts," Dec. Dig. (Key-No.) § 136; Cent. Dig. §§ 6S1-100.
80 Rand v. Mather, 11 Cush. (Mass.) 1, 59 Am. Dec. 131 [overruling Loomis-v. Newhall, 15 Pick. (Mass.) 159]; Bixby v. Moor, 51 N. H. 402. See "Contracts," Dec. Dig. (Key-No.) § 187; Cent. Dig. §§ 701-712.
81 2 Kent, Comm. 467; U. S. v. Bradley, 10 Pet. 343, 9 L. Ed. 448; HANDY v. ST. PAUL GLOBE PUB. CO., 41 Minn. 188, 42 N. W. 872, 4 L. R. A. 466, 16 Am. St. Rep. 695, Throckmorton Cas. Contracts, 227; Santa Clara Valley Mill & Lumber Co. v. Hayes, 76 Cal. 3S7, 18 Pac. 391, 9 Am. St Rep. 211. See "Contracts," Dec. Dig. (Key-No.) § 187; Cent. Dig. §§ 701-712.
82 Anson, Cont (4th Ed.) 189; Pickering v. Railway Co., LR.3C. P. 250; State v. Findley, 10 Ohio, 51; Rand v. Mather, 11 Cush. (Mass.) 1, 59 Am. Dec. 131; U. S. v. Bradley, 10 Pet. 343, 9 L. Ed. 448; Hynds v. Hays, 25 IncL 31 See "Contracts," Dec. Dig. (Key-No.) § 137; Cent. Dig. §§ 701-712.
The above are the general rules, but it will aid us in understanding the doctrine if we state the law more in detail.