§ 582. Every contract, the consideration to which is tainted with illegality or immorality,3 is void; and as the consideration of a contract is twofold, moving from either party to the other, it follows, that every agreement to do an illegal act is invalid, the act being the consideration on one side.4 A contract may be illegal, because it contravenes the principles of the common law, or the special requisitions of a statute. The former illegality exists whenever the consideration is founded upon a transaction which violates public policy or morality, -as a contract to commit, conceal, or compound a crime; a contract for illicit cohabitation; or a contract in fraud of the rights and interests of third persons. The illegality created by statute exists when the act is either expressly prohibited, or when the prohibition is implied from the nature and objects of the statute.1
1 Story on Bailm. § 164 to 172; 2 Kent, Comm. 570, 571.
2 Coggs v. Bernard, 2 Ld. Raym. 909, 919, 920; Elsee v. Gatward, 5 T. R. 143; Wilkinson v. Coverdale, 1 Esp. 75; Rutgers v. Lucet, 2 Johns. Cas. 92; Doct. and Stu. Dial. 2, ch. 24, p. 176. See also the case of Thorne v. Deas, 4 Johns. 84; Balfe v. West, 13 C. B. 466; 22 Eng. Law & Eq. 506.
3 Taylor v. Chester, Law R. 4 Q. B. 309 (1869).
4 22 Am. Jur. 23; 2 Kent, Comm. 466.
§ 583. Where a contract is founded upon two considerations, one of which is merely void, but not illegal, and the other is good,'the contract will be binding, and entitle the party to damages, to the extent of the good consideration; provided, by its terms, it be susceptible of apportionment.2 Thus, where there was a verbal agreement to sell a certain farm, and dead stock, and growing wheat, at separate prices, it was held, that the contract was distinct as to each item, and although the agreement as to the land was void, because it did not comply with the requisitions of the statute of frauds, it being oral, yet, that the agreement as to the wheat and dead stock was binding.3 If, however, the contract be an entirety, the partial failure of the consideration would wholly invalidate it.4 But where the contract consists of but one consideration, which is illegal, or where a part of this consideration is illegal, the whole contract is void.5 So, where part of an entire agreement must be in writing to be valid under the statute of frauds, a part of such agreement cannot be proved by parol.1 So, also, as there is a consideration moving from each side in every contract, the same rule applies to an agreement to do two or more acts; and in such case, if one be illegal, and the other be legal, the contract is void, but if one be merely void and insufficient, and the other be good, the contract is valid.2 But if the agreement be to do an act, which may be effected either by lawful or unlawful means, the law will presume in favor of the contract that the parties contemplated the employment of legal means.3
1 Story on Bills of Exchange, § 186. The Roman and French law inculcates the same general principles. Quod turpi ex causa promissum est, non valet. Inst. Lib. 3, tit. 20, § 24; Pothier on Oblig. n. 43 to 46.
An agreement that all matters in dispute shall be submitted to arbitration, is not illegal, though ousting the courts of jurisdiction until the matters have been thus decided. Scott v. Avery, 5 H. L. C. 811 (1856).
2 Bliss v. Negus, 8 Mass. 51; Crisp v. Gamel, Cro. Jac. 128; Pikard v. Cottels, Yelv. 56; Com. Dig. Assumpsit, B. 13; Best v. Jolly, 1 Sid. 38; Cripps v. Gouldinge, 1 Roll. Abr. 30; Action sur Cas, Y. 2; Brett v. S., Cro. Eliz. 755; Hynds v. Hays, 25 Ind. 31 (1865); Treadwell v. Davis, 34 Cal. 601 (1868).
3 Mayfield v. Wadsley, 3 B. & C. 361; s. c. 5 Dowl. & Ryl. 228. See also Wood v. Benson, 2 Cr. & J. 94.
4 Roby v. West, 4 N. H. 285; Chater v. Beckett, 7 T. R. 201; Loomis v. Newhall, 15 Pick. 167; Crawford v. Morrell, 8 Johns. 253; Filson v. Himes, 5 Barr, 452; Hall v. Dyson, 17 Q. B. 785; 10 Eng. Law & Eq. 424; Howden v. Simpson, 10 Ad. & El. 793; Gamble v. Grimes, 2 Carter, 392.
5 Waite v. Jones, 1 Bing. N. C. 662; Featherston v. Hutchinson, Cro. Eliz. 199; Lewis v. Davison, 4 M. & W. 654; Stevens v. Webb, 7 C. & P. 60; Shackell v. Rosier, 2 Bing. N. C. 646; Scott v. Gillmore, 3 Taunt. 226; Bridge v. Cage, Cro. Jac. 103; Card v. Hope, 2 B. & C. 661; Jones v.
§ 584. If a contract grow immediately out of an immoral or illegal act, or be connected with it; as, for instance, if it be to indemnify a person for an act known to be a trespass,4 it is invalid. But if it be wholly disconnected from the illegal act, and founded on a new and independent consideration, it may be enforced, though the illegal act was known to the party to whom the promise was made, and he was the contriver of it.5 Thus, if A. should become answerable for expenses on account of a prosecution for the illegal exportation of goods, or should advance money to defray the expenses, these acts would constitute a new contract, founded upon a new consideration, unless such an agreement were made prior to the illegal exportation, and formed a part of the consideration therefor.6 This proceeds upon the ground that the consideration of the new contract is not founded upon an illegality.
Waite, 7 Scott, 317; s. c. 5 Bing. N. C. 341; Deering v. Chapman, 22 Me. 488; Filson v. Himes, 5 Barr, 452; Carlton v. Bailey, 7 Foster, 230; Perkins v. Cummings, 2 Gray, 258; Gaitskill v. Greathead, 1 Dowl. & Ryl. 359.
1 Foquet v. Moore, 7 Exch. 870; 16 Eng. Law & Eq. 466, and Bennett's note; Vaughan v. Hancock, 3 C. B. 766.
2 Lewis v. Davison, 4 M. & W. 654; Stevens v. Webb, 7 C. & P. 60.
4 Davis v. Arledge, 3 Hill (S. C), 170.
5 Hodgson v. Temple, 5 Taunt. 181; Toler v. Armstrong, 4 Wash. C. C. 297; s. c. 11 Wheat. 258; StorjP, Confl. Laws, § 248, 249; Jones v. Randall, 1 Cowp. 39; Bryan v. Lewis, Ry. & Mood. 386; Howell v. Fountain, 3 Kelly, 176. See Hibblewhite v. M'Morine, 5 M. & W. 462, in which Bryan v. Lewis is overruled.