Where money is paid, goods are sold, or services rendered, under a contract merely void, but not illegal, an implied assumpsit lies for the money paid, or for the value of the goods sold or services rendered; but where the contract is illegal because contrary to positive law or against public policy, an action does not lie to recover the money paid on it, or the value of the goods sold or services rendered under it.59 To permit a recovery upon a quanturn meruit or quantum valebant for benefits received under an illegal contract would result in the indirect enforcement of the contract itself, and, to a large extent at least, would relieve it of any odium or inconvenience, whereas it is the policy of the law to discourage the making of illegal agreements.60

57 Rountree v. Smith, 108 U. S. 2G9, 2 Sup. Ct 630, 27 L. Ed. 722; Irwin v. Williar, 110 U. S. 499, 4 Sup. Ct. 1G0, 28 L. Ed. 225; Edwards v. Hoef-finghoff (C. C.) 38 Fed. 635; Lehman v. Feld (C. C.) 37 Fed. 852; Boyd v. Hanson (C. C.) 41 Fed. 174; Pape v. Wright, 116 Ind. 502, 19 N. E. 459; Mohr v. Miesen, 47 Minn. 228, 49 N. W. 862; Bartlett v. Collins, 109 Wis. 477, 85 N. W. 703, 83 Am. St. Rep. 928. A mere expectation on the part of the principal and broker, in sales for future delivery, that purchasers from the principal may be willing to adjust the transactions by paying or receiving differences, when there is no agreement to that effect, does not render the contract illegal. Barnes v. Smith, 159 Mass. 344, 34 N. E. 403; ante, p. 344. In England, where gaming and wagering contracts are held not illegal at common law, but were by statute rendered null and void, but not illegal, money paid by an agent in pursuance of such a contract was recoverable from his principal. Thacher v. Hardy, 4 Q. B. D. 6S5. And see Read v. Anderson, 13 Q. B. D. 779; Seymour v. Bridges, 14 Q. B. D. 460; Knight v. Lee, [1893] 1 Q. B. D. 41. This has since been changed by statute. Tatam v. Reeve, [1893] 1 Q. B. 44. See "Contracts," Dec. Dig. (Key-No.) § 138; Cent. Dig. §§ 681-700.

58Cheuvront v. Horner, 62 W. Va. 476, 59 S. E. 964; Hertzler v. Geigley, 196 Pa. 419, 46 Atl. 366, 79 Am. St. Rep. 724; Ware v. Spinney, 76 Kan. 289, 91 Pac. 787, 13 L. R. A. (N. S.) 267, 13 Ann. Cas. 1181. See "Contracts," Dec. Dig. (Key-No.) § 138; Cent. Dig. §§ 681-100; "Intoxicating Liquors," Dec. Dig. (Key-No.) § 327; Cent. Dig. §§ 1,67-473.

59 Roller v. Murray, 112 Va. 780, 72 S. E. 665, 38 L R. A. (N. S.) 1202, Ann. Cas. 1913B, 1088; Cole v. Brown-Hurley Hardware Co., 139 Iowa, 487, 117 N. W. 746, 18 L. R. A. (N. S.) 1161, 16 Ann. Cas. 846. But see White Star Line v. Star Line of Steamers, 141 Mich. 604, 105 N. W. 135, 113 Am. St. Rep. 551, allowing a recovery upon a quantum meruit for benefits actually received upon disaffirming the illegal contract See "Contracts," Dec. Dig. (Key-No.) § 138; Cent. Dig. § 698.

Conflict Of Laws

186. IN SPACE. The validity of a contract is as a rule determined by the law of the place where it is made, but if it is to be performed in some other place its validity is as a rule determined by the law of that place.

EXCEPTION - A contract will not be enforced where to enforce it would be injurious to the interest of the state or country where it is sought to be enforced, or of its citizens.

187. IN TIME. An agreement which is illegal when made is not rendered valid by subsequent legislation. On the other hand a change in the law cannot render illegal an agreement which was legal when made, though it may render further performance impossible, and operate as a discharge.

As a general rule, subject to exceptions which we will notice briefly, the legality of a contract is to be determined by the law of the place where it is made and is to be performed. If it is valid there it is valid everywhere. "This rule is founded on the tacit consent of civilized nations, arising from its general utility, and seems to be a part of the law of nations adopted by the common law." 61 A sale of goods, for instance, made and completed by delivery in one state, where it is valid, will be enforced in another state, though it would have been invalid if made in the latter state.62 A note executed in one state and free from usury under its laws is valid in another state, although if made in the latter state it would have been usurious and void.63 A marriage, also, though strictly not a contract, is governed by the same principle. If valid where it is executed, it is valid everywhere.64 On the other hand, a contract which is invalid where it is made and is to be performed is invalid everywhere.65 A note, for instance, which is void for usury in the state where it is executed, is void in another state, though, if made in the latter, it would have been valid.66

60 Roller v. Murray, 112 Va. 708, 72 S. E. 665, 38 L. R. A. (N. S.) 1202, Ann. Cas. 1913B, 1088. See post, p. 650. See "Contracts," Dec. Dig. (Key-No.) § 138 Cent. Dig. §§ 681-700.

61 Pearsall v. Dwight, 2 Mass., at page 89, 3 Am. Dec. 35. And see Andrews v. Herriot, 4 Cow. (N. T.) 508, note (where the earlier cases are collected); Ward v. Vosburgh (C. C.) 31 Fed. 12; Brown v. Finance Co. (C. C.) 31 Fed. 516; Sullivan v. Sullivan, 70 Mich. 583, 38 N. W. 472; Western & A. R. Co. v. Cotton Mills, 81 Ga. 522, 7 S. B. 916, 2 L. R. A. 102; Fessenden v. Taft, 65 N. H. 39, 17 Atl. 713; Central Trust Co. v. Burton, 74 Wis. 329. 43 N. W. 141; Appeal of Fowler, 125 Pa. 388, 17 Atl. 431, 11 Am. St. Rep 902; Atlantic Phosphate Co. v. Ely,.S2 Ga. 438, 9 S. B. 170; Fairchild v, Railroad Co., 148 Pa. 527, 24 Atl. 79; Fonseca v. Steamship Co., 153 Mass. 553, 27 N. E. 665, 12 L. R. A. 340, 25 Am. St. Rep. 660; O'Regan v. Steamship Co., 160 Mass. 356, 35 N. E. 1070, 39 Am. St. Rep. 484; Thompson v. Taylor, 66 N. J. Law, 253, 49 Atl. 544, 54 L, R. A. 585, 88 Am. St Rep. 485; International Harvester Co. of America v. McAdam, 142 Wis. 114, 124 N. W.