Though mistake of law does not excuse, it is otherwise in case of mistake of fact." A father, for instance, may recover for services performed by his minor son, in unlawfully selling intoxicating liquors if he did not know the character of the services while his son was performing them. In reference to the defense of illegality in such a case it was said: "This defense is founded on a well-settled rule of law, that the law will not lend its aid to carry into effect any agreement made for the purpose of accomplishing things expressly prohibited by law. * * * The only question is whether it applies to this case. If the plaintiff did not place his son in the service of the defendant for the purpose of selling liquor illegally, more especially if he did not consent to it or know of it, then he is chargeable with no violation of law; and being, by the general rule of law, entitled to compensation for the services of his son, the defense is not maintained." 1
98 Waugh v. Morris, L. R. 8 Q. B. 202. See Fox v. Rogers, 171 Mass. 546, 50 N. E. 1041. See "Contracts," Dec. Dig. (Key-No.) §§ 102, 105; Cent. Dig. §§ 462-467.
99 Clark, Cr. Eaw (2d Ed.) 82.
1 Emery v. Kempton, 2 Gray (Mass.) 257. If, however, an agent sells liquor, for instance, knowing it is to be retailed in violation of law, his prin-
So, also, it has been held that an actor may maintain an action for his services in an unlicensed theatrical exhibition, unless it appears that he knew that his employer had no license. As said in such a case: "It is ignorance of a fact, and not of the law, that saves the plaintiff's case. He undoubtedly knew, or was bound to know, that unlicensed theatrical exhibitions were unlawful; but he was not bound to know that the defendants had no license, and were doing unlawful acts." *
179. Where the direct object of the agreement is innocent, but the intention of one of the parties is unlawful, as where goods are bought or money borrowed to be used for an unlawful purpose, the fact that the other party knows of such purpose does not render the agreement illegal, unless
(a) He shares in the unlawful intention.
(b) Or does some act in aid or furtherance of the other's unlawful design.
(c) Or where the intention is to commit a crime which is not merely malum prohibitum or of inferior criminality.
180. If the direct object of the agreement is innocent, and there is an unlawful intention on one side only, of which the cipal is charged with such knowledge. Fishel v. Bennett, 56 Conn. 40, 12 Atl. 102. See "Intoxicating Liquors" Dec. Dig. (Key-No.) § 329; Cent. Dig. §§ 474-481.
2 Roys v. Johnson, 7 Gray (Mass.) 162 (cf. Stewart v. Thayer, 168 Mass. 519, 47 N. E. 420, 60 Am. St Rep. 407). And see Bloxsoine v. Williams, 3 Barn. & C. 232; Miller v. Hirschberg (Or.) 37 Pac. 85. As illustrating this principle may also be mentioned bonds given to indemnify an officer or private person assisting him against liability for seizing goods under attachment, or for arresting a person. If the officer knows the seizure or arrest to be unlawful, the bond is illegal; but it is otherwise if he acts in good faith, and in ignorance of the illegality, as where it is in dispute whether property is subject to levy. Stone v. Hooker, 9 Cow. (N. Y.) 154; Marsh v. Gold, 2 Pick. (Mass.) 285; Ives v. Jones, 25 N. C. 538, 40 Am. Dec. 421; Anderson v. Farns, 7 Blackf. (Ind.) 343; Avery v. Halsey, 14 Pick. (Mass.) 174; Davis v. Tibbats, 7 J. J. Marsh. (Ky.) 264; McCartney v. Shepard, 21 Mo. 573, 64 Am. Dec. 250; Whitney v. Gammon, 103 Iowa, 363, 72 N. W. 551. See "Contracts," Dec. Dig. (Key-No.) § 102; Cent. Dig. §§ 462-467.
other party is ignorant, the latter is entitled to full benefits under the agreement, or, while the agreement is still executory, he may avoid it.