Where money has been paid or goods have been delivered in part performance of an illegal agreement, the money or pay ment for the goods may be recovered so long as the illegal part of the agreement is wholly unexecuted,68 unless the whole agree ment involved serious moral turpitude. A common application of this doctrine has already been considered with reference to wagers.69 On the same principle recovery may be had for law ful services though the contract required unlawful services also to be rendered, if the plaintiff withdrew from the transaction before entering upon the unlawful portion of the contract.7
66 Norbeck & Nicholson Co v. State, 32 8. Dak. 189, 142 N. W. 847, Ann. Cas. 1916 A. 229, and see supra, Sec.Sec. 1703, 1740.
67 Norbeck & Nicholson Co. v. State, 32 S. Dak. 189, 142 N. W. 847, Ann. Cas. 1916 A. 229.
68 Tappenden v. Randall, 2 B. A P. 467; Taylor v. Bowers, 1 Q. B. D. 291; Kearley v. Thomson, 24 Q. B. D. 742; Spring Co. v. Knowlton, 103 U. S. 49, 26 L. Ed. 347 (but see s. c. 57 N. Y. 518); Block v. Darling, 140 U. S. 234, 36 L. Ed. 476, 11 S. Ct. 832; Wasser-mann v. Sloss, 117 Cal. 425, 49 Pac. 566, 38 L. R. A. 176, 59 Am. St. Rep. 209; De Leon v. Walsh, 140 Cal. 175, 73 Pac. 813; White v. Franklin Bank,
22 Pick. 181; Skinner v. Henderson 10 Mo. 205; Brown v. Timmany, 21 Ohio, 81; Trammell v. San Antonio L. Ins. Co. (Tex. Civ. App.), 209 S W. 786; Deaton v. Lawson, 40 Wash 486, 82 Pac. 879, 2 L. R. A. (N. S.] 392, 111 Am. St. Rep. 922.
69 See supra, Sec.Sec.1679, 1680. And see a similar application of principle to an attempted recovery of a payment made to secure an illegal contract of another kind in Martin v. Francis, 173 Ky. 529, 191 S. W. 259, L. R. A. 1918 F. 966.
70 In Eastern Metal Co. v. Webb Granite, etc., Co., 195 Mass. 356, 362, 81 N. E. 251, Knowlton, C. J., said (and his language was quoted with ap-
It will be observed that the right of rescission and recovery of the consideration by a plaintiff must be confined to cases where it is the defendant's promise that is illegal, not the consideration for it; or where a portion only of the consideration is illegal, and that portion is still executory. Where any illegal consideration in an indivisible contract has been given it is clear that nothing, under the terms of the rule, can be recovered.