§ 757. If the contract has been settled and discharged, the law will not aid the parties to repudiate it and get back in statu quo.6
§ 758. There has been a distinction lately drawn between cases where a contract violates a statute law designed for the to furnish, but subsequently does furnish, A. cannot refuse to pay a fair value for such service because of what was said on Sunday. Dickinson v. Richmond, 97 Mass. 45.
1 Bloxsome v. Williams, 3 B. & C. 232; Lovejoy v. Whipple, 18 Vt. 379; Fennell v. Ridler, 8 Dowl. & Ryl. 204; s. c. 5 B. & C. 406; Williams v. Paul, 6 Bing. 653.
2 Smith v. Sparrow, 4 Bing. 87.
3 Merriam v. Stearns, 10 Cush. 257.
4 Pope v. Linn, 50 Me. 83 (1863); Day v. McAllister, 15 Gray, 433 (1860); Cranson v. Goss, 107 Mass. 439 (1871), and many cases there cited.
5 Sumner v. Jones, 24 Vt. 317; Adams v. Gay, 19 Vt. 358; Williams v. Paul, 6 Bing. 653. But see Simpson v. Nicholls, 3 M. & W. 240, 244; s. c. 5 M. & W. 702, note; Tuckerman v. Hinkley, 9 Allen, 454 (1864); Kountz v. Price, 40 Miss. 341 (1866). See also Boutelle v. Melendy, 19 N. H. 196; Perkins v. Jones, 25 Ind. 499 (1866); Sayre v. Wheeler, 31 Iowa, 112 (1870); Sargent v. Butts, 21 Vt. 99.
8 Horton v. Buffinton, 105 Mass. 399 (1870); Myers v. Meinrath, 101 Mass. 366.
§ 759. There is another distinction to be observed between cases where the contract is directly in violation of a statute, and cases where it is collaterally connected with some incidental illegality not contemplated in its terms. If the illegality do not form a portion of the contract, but be entirely collateral, and capable of complete separation therefrom, the contract will be binding. But if the illegality be inherent, so that it constitutes a portion of the consideration, the contract will be void.3 Thus, where a person sold tobacco, without previously complying with the statute regulations as to obtaining a license, it was held that he could sue the vendee for the price, since the contract of sale was wholly independent of and collateral to the illegality.4 So, also, where a rectifier of spirits had sold spirits without having previously conformed to the provisions of the excise act, requiring him to send with them a permit stating their true strength, - it was held that he could recover the price thereof; for there was no illegality in the mere contract of sale, but only in the subsequent omission of the vendor to send a proper permit.1
1 Johnson v. Hudson, 11 East, 180; Brown v. Duncan, 10 B. & C. 98; Hodgson v. Temple, 5 Taunt. 181.
2 Cope v. Rowlands, 2 M. & W. 157. See also Story, Confl. Laws, § 259, note; Pellecat v. Angell, 2 C. M. & R. 311; D'Allex v. Jones, 2 Jur. (n. s.) 979; 37 Eng. Law & Eq. 477; Taylor v. Crowland Gas Company, 26 ib. 460; 10 Exch. 293.
3 Wetherell v. Jones, 3 B. & Ad. 221; Pellecat v. Angell, 2 C. M. & R. 311; The Queen v. Somerby, 9 Ad. & El. 311; Fergusson v. Norman, 5 Bing. N. C. 76; Forster v. Taylor, 5 B. & Ad. 889; Little v. Poole, 9 B. & C. 200. See also Story, Confl. Laws, § 247 to 255.
4 Johnson v. Hudson, 11 East, 180.
§ 760. So, also, if an act in violation of either statute or common law be already committed, and a subsequent agree ment entered into, which, though founded thereupon, consti tuted no part of the original inducement or consideration of the illegal act, such an agreement is valid.2 If, therefore, goods, which have been smuggled, be sold to a third person, he knowing the fact, yet, unless the sale be in pursuance of an original agreement, entered into before the smuggling, and forming an inducement thereto, the vendee will be liable for the price.1 So, also, if A. should, during war, contrive an illegal plan for importing goods from the country of the enemy, on his own account, and goods should be sent to B. in the same vessel, and A. should, at the request of B., become surety for the payment of duties on B.'s goods; or should assume the responsibility of the expenses which might be incurred on account of a prosecution for illegal importation; or should advance money to B. to enable him to pay those expenses, -A. might maintain an action upon the promise of B. to refund the money: because if the act constituted no part of the original scheme, the contract would be founded upon a new and legal consideration, unconnected with the original act, although remotely caused by it. Yet if the importation had been the result of a scheme between the plaintiff and defendant, a bond given to repay any advances, made in pursuance of such an agreement, would be void.2 Indeed, wherever the original illegal contract is so involved in the contract on which the action is brought, that the two cannot be separated,- and whenever they seem to be but a continuation of the same agreement,- no action can be supported on either. But if the subsequent agreement be totally disconnected from the original, it may be enforced.8 This distinction will be found to form the principle which lies at the root of many apparently contradictory cases, and to offer the best solution to the various and opposing decisions.
1 Wetherell v. Jones, 3 B. & Ad. 221. In this case, Lord Tenterden said: " We are of opinion that the irregularity of the permit, though it arises from the plaintiff's own fault, and is a violation of the law by him, does not deprive him of the right of suing upon a contract which is in itself perfectly legal; there having been no agreement, express or implied, in that contract, that the law should be violated by such improper delivery. Where a contract which a plaintiff seeks to enforce is expressly, or by implication, forbidden by the statute or common law, no court will lend its assistance to give it effect; and there are numerous cases in the books where an action on the contract has failed, because either the consideration for the promise or the act to be done was illegal, as being against the express provisions of the law, or contrary to justice, morality, and sound policy. But where the consideration and the matter to be performed are both legal, we are not aware that a plaintiff has ever been precluded from recovering by an infringement of the law, not contemplated by the contract, in the performance of something to be done on his part."In Fergusson v. Norman, 5 Bing. N. C. 84, Tindal, C. J., said: "A distinction may easily be drawn as to those duties imposed on the pawnbroker which are entirely collateral to the individual contract; and it would be too much to say, because he had not observed the enactment of the statute in such matters, that therefore the contract made by him should be void. Suppose an instance in which his name was required to be put up over the door, and some mistake had been made. A penalty is given for not putting up the name; but it would not follow that contracts entered into by an individual whose name had been incorrectly spelled, would be therefore void."