Same - Money Paid Under Unenforceable Contract

Money paid under an agreement unenforceable because of the statute of frauds may be recovered upon the default of the defendant in the performance of his part of the agreement;2 but, by the weight of authority, it may not be recovered so long as the defendant is not in default.3

Same - Money Paid Under Illegal Contract

Though, as we have seen, no action will lie to enforce an illegal contract, an action will be allowed, under some circumstances, in disaffirmance of it. Ordinarily, where one of the parties has paid money under an illegal contract, he cannot sue to recover it back. The law will leave him where he has placed himself.4 To this rule, as we have may be recovered upon return of the consideration as to which the warranty was broken. See ante, p. 5S1. See "Sales," Dec. Dig. (Key-No.) § 391; Cent. Dig. §§ 1110-1127.

97 Devaux v. Conolly, 8 C. B. 640; Goodspeed v. Fuller, 46 Me. 141, 71 Am. Dec. 572; Laflin v. Howe, 112 I11. 253. See "Sales," Dec. Dig. (Key-No.) § 391; Cent. Dig. §§ 1110-1127.

98westlake v. Adams, 5 C. B. (N. S.) 266; Taylor v. Hare, 1 Bos. & P. (N. R.) 260; Lambert v. Heath, 15 Mees. & W. 4S6; ante, p. 586. See "Money Received," Dec. Dig. (Key-No.) § 4; Cent. Dig. §§ 9, 10.

99 Morley v. Attenborough, 3 Exch. 500; Lambert v. Heath, 15 Mees. & W. 486; Westlake v. Adams, 5 C. B. (N. S.) 266. See "Money Received," Dec. Dig. (Key-No.) § 4; Cent. Dig. §§ 9, 10.

1 Stray v. Russell, 1 El. & El. 888, 916. See "Money Received," Dec. Dig. (Key-No.) § 4; Cent. Dig. §§ 9, 10.

2 Richards v. Allen, 17 Me. 296; Durham v. Wick, 210 Pa. 128, 59 Atl. 824, 105 Am. St. Rep. 789, 2 Ann. Cas. 929. See "Frauds, Statute of," Dec. Dig. (Key-No.) § 1SS; Cent. Dig. §§ 327-333.

3 Thomas v. Brown, 1 Q. B. D. 714; York v. Washburn (C. C.) 118 Fed. 316; McKinney v. Harvie, 38 Minn. 18, 35 N. W. 60S. 8 Am. St. Rep. 640. Contra, King v. Welcome, 5 Gray (Mass.) 41. See "Frauds, Statute of," Dec. Dig. (Key-No.) § 138; Cent. Dig. §§ 327-333.

4Holman v. Johnson, 1 Cowp. 341; Touro v. Cassin, 1 Mott & McC. (S. C)

seen, there are some exceptions. Where the contract is still executory, except for a payment of money made by one of the parties to the other, and is not of such a character that the illegal object is effected by the mere payment, and is malum prohibitum, and not malum in se, there is a locus pœ;nitentiæ, and the party who has paid the money may withdraw from the contract, and recover what he has paid as money received for his use.5 The law creates a quasi contractual obligation, on the part of the party who has received the money, to repay it. Another exception is where the parties are not in pari delicto. Where the party who has paid money under an illegal contract entered into the contract under the influence of fraud or strong pressure, or where the law which makes the contract unlawful was intended for his protection, he is not regarded as being in pari delicto with the other party, and may recover what he has paid.8