It has been said that "there is no policy of the law against the plaintiff's recovery unless his contract was illegal, and a contract is not necessarily illegal because it is carried out in an illegal way." 62 It is submitted that if this statement is made as a general principle it is unsound. The illegality of the plaintiff in relation to the contract is the vital test, not merely the character of the contract.63 It is true that not every illegal act in performing a contract will vitiate recovery; thus if a carpenter in building a legal fence commits a trespass, this will not preclude recovery for the fence, but if the performance rendered by the plaintiff is something in itself forbidden by law to be rendered the facts that the contract was in such general terms as to cover either such illegal performance or a lawful performance, and that both parties originally had no intention to have the performance unlawful, will surely not justify a recovery on the contract for the price of the unlawful performance. An agent can recover no commissions for negotiating a contract or sale by illegal means,64 though his contract with his principal did not specify the means to be employed, and his case would not be helped by proving that the principal or that both the principal and he himself originally expected legal means only would be employed. It would be a novel public policy which would deny recovery against a wrong-doing principal where both parties originally had an evil intent, and would allow recovery against an innocent principal when the plaintiff is equally guilty in both cases. Not the illegality of the contract, but the illegality of the plaintiff's conduct either in entering into or in performing the contract is the true ground for denying recovery.65
6l See supra, Sec. 1674.
62 Fox v. Rogers, 171 Mass. 546, 50 N. E. 1041. See also Armour v. Jesmer, 76 Wash. 475, 136 Pac. 680.
63 See supra, Sec.Sec. 1630, 1631.
64 Qscanyan v. Winchester Arms Co., 103 U. S. 261, 26 L. Ed. 539. In this case the plaintiff had contracted for a commission for inducing the Turkish government, whose consul in the United States he was, to buy arms of the defendant company. He was denied recovery. See also Findlay p. Pertz, 66 Fed. 427, 31 U. S. App. 340, 13 C. C. A. 559, 29 L. R. A. 188; Hay-ward v. Nordberg Mfg. Co., 85 Fed. 4, 54 U. S. App. 639, 29 C. C. A. 438. And see Wald's Pollock, Contracts (3d ed.), 377, note. Compare Clark v. American Coal Co., 86 Iowa, 436, 53 N. W. 291, 17 L. R. A. 557.