isor resting, however, upon a new contract, and not upon a ratification of the original contract."

Disaffirmance before Execution of Illegal Purpose.

It is a general rule that where money has been paid upon an agreement whose object, although illegal, has not been in other respects carried out by performance, the party who has paid the money may disaffirm the contract, and recover the money in an action for money had and received." Thus, where a corporation passed a resolution increasing its capital stock in violation of the law, and the plaintiff agreed to take certain shares of the new stock when issued, and paid an installment thereon, but the stock was never actually increased, nor were certificates issued, the court held that, conceding the illegality of the contract, the plaintiff was entitled to recover the money paid by him in part performance, the defendant not having performed any part of the agreement, and both parties having abandoned the illegal agreement before it was consummated.*1 The rule was stated in a leading English case 62 as follows: "If money is paid, or goods delivered, for an illegal purpose,

59 Winfield v. Dodge, 45 Mich. 355, 7 N. W. 906, 40 Am. Rep. 476; Haacke v. Literary Club, 76 Md. 429, 25 Atl. 422; Brewster v. Banta, 66 N. J. Law, 367, 49 Atl. 718. An action may be maintained on a new promise. Williams v. Paul, 6 Bing. 653; Harrison v. Colton, 31 Iowa, 16; Melchoir v. McCarty, 31 Wis. 252, 11 Am. Rep. 605. See Winchell v. Carey, 115 Mass. 560, 15 Am. Rep. 151. Contra: Boutelle v. Melendy, 19 N. H. 196, 49 Am. Dec. 152; Kountz v. Price, 40 Miss. 341.

60 Taylor v. Bowers, 1 Q. B. Div. 291; Barclay v. Pearson [1893] 2 Ch. 154; Congress & Empire Spring Co. v. Knowlton, 103 U. S. 49, 26 L. Ed. 347; White v. Bank, 22 Pick. (Mass.) 181, 189; Tyler v. Carlisle, 79 Me. 210, 9 Atl. 356, 1 Am. St. Rep. 301; Clarke v. Brown, 77 Ga. 606, 4 Am. St. Rep. 98; Peters v. Grim, 149 Pa. 163, 24 Atl. 192, 34 Am. St. Rep. 599; Souhegan Nat. Bank v. Wallace, 61 N. H. 24; Adams Exp. Co. v. Reno, 48 Mo. 264; Wasserman v. Sloss, 117 Cal. 425, 49 Pac. 566, 38 L. R. A. 176, 59 Am. St. Rep. 209; Stansfield v. Kunz, 62 Kan. 797, 64 Pac. 614. Cf. Ullman V. Association, 167 Mo. 273, 66 S. W. 949, 56 L. R. A. 606; Kearley v. Thompson, 24 Q. B. Div. 742, 746. Contra: Knowlton v. Spring Co., 57 N Y. 518, Dwight, C., dissenting. Benj. Sales, § 503a; Clark, Cont. (2d Ed.) 338.

61 Congress & Empire Spring Co. v. Knowlton, 103 U. S. 49, 26 L. Ed. 347.

62 Taylor v. Bowers, 1 Q. B. Div. 291, per Mellish, L. J.

the person who had so paid the money or delivered the goods may recover them back before the illegal purpose is carried out."

Plaintiff Not In Pari Delicto.

If the party asking to be relieved from an illegal agreement was not in pari delicto with the other party, the court may relieve him. "Where the parties to a contract against public policy, or illegal, are not in pari delicto (and they are not always so), and where public policy is considered as advanced by allowing either, or at least the more excusable of the two, to sue for relief against the transgression, relief is given to him." This exception applies where the party seeking relief was induced to enter into the agreement by fraud, undue influence, or duress, or where the illegality is created by statute, and the party seeking relief is one of the class of persons whom the statute was intended to protect.""

99 63

Separable Contract.

64

67

66

As a general rule governing all contracts, if any part of the consideration is illegal, the whole agreement is void. This rule applies to sales, and, where such illegality exists, the seller cannot recover the price. But if the contract is separable, so that it is clear that the parties intend it to be carried into effect piecemeal, the illegality of one part will not prevent the legal part from being enforced. Thus, when each.

68

63 Reynell v. Sprye, 1 DeGex, M. & G. 660. See Clark, Cont. (20 Ed.) 340.

64 Smith v. Cuff, 6 Maule. & S. 160, 165; Atkinson v. Denby, 6 Hurl. & N. 778, 7 Hurl. & N. 934; Block v. McMurry, 56 Miss. 217, 31 Am. Rep. 357; Davidson v. Carter, 55 Iowa, 117, 7 N. W. 466; Bell v. Campbell, 123 Mo. 1, 25 S. W. 359, 45 Am. St. Rep. 505; Woodham v. Allen, 130 Cal. 194, 62 Pac. 398.

65 Browning v. Morris, 2 Cowp. 790; Bowditch v. Insurance Co., 141 Mass. 292, 4 N. E. 798, 55 Am. Rep. 474; Mason v. McLeod, 57 Kan. 105, 45 Pac. 76, 41 L. R. A. 548, 57 Am. St. Rep. 327; Clark, Cont. (2d Ed.) 341.

66 Waite v. Jones, 1 Bing. N. C. 656; Jones v. Waite, 5 Bing. N. C. 341; Trist v. Child, 21 Wall. (U. S.) 441, 22 L. Ed. 623; Clark, Cont. (2d Ed.) 321.

67 Holt v. O'Brien, 15 Gray (Mass.) 311; Woodruff v. Hinman, 11 Vt. 592, 34 Am. Dec. 712; Laing v. McCall, 50 Vt. 657; Filson v. Himes, 5 Pa. 452, 47 Am. Dec. 422; Ladd v. Dillingham, 34 Me. 316. 08 Odessa Tramways Co. v. Mendel, 8 Ch. Div. 235.

article is sold for a separate price, the price of those articles which it was lawful to sell may be recovered." If, however, a note is given for the price of all the articles, there can be no recovery upon it, since the note is based in part upon an illegal consideration.7° But if more than one note is given, and the legal items equal the amount of one of the notes, a recovery can be had upon it, because the plaintiff has the right to appropriate the other note to the illegal items."1

The rule that the illegality does not avoid the entire contract if it is divisible applies whether the illegality exists by statute or by common law," although it was formerly held that it did not apply where the illegality was created by statute, which it was said "is like a tyrant-where he comes, he makes all void."

CONFLICT OF LAWS.

69. The legality of a contract of sale is determined by the law in force where the sale is executed.

As a rule, the validity of a contract is to be 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 to be determined by the law of that place." If a sale is valid where

• Boyd v. Eaton, 44 Me. 51, 69 Am. Dec. 83; Carleton v. Woods, 28 N. H. 290; Walker v. Lovell, Id. 138, 61 Am. Dec. 605; Barrett v. Delano (Me.) 14 Atl. 288; Chase v. Burkholder, 18 Pa. 48; Clark, Cont. (2d Ed.) 324. See, also, Shaw v. Carpenter, 54 Vt. 155, 41 Am. Rep. 837.

70 Deering v. Chapman, 22 Me. 488, 39 Am. Dec. 592; Coburn v. Odell, 30 N. H. 540; Kidder v. Blake, 45 N. H. 530; Allen v. Pearce, 84 Ga. 606, 10 S. E. 1015; Cotten v. McKenzie, 57 Miss. 418; Widoe v. Webb, 20 Ohio St. 431, 5 Am. Rep. 664; Braitch v. Guelick, 37 Iowa, 212; Oakes v. Merrifield, 93 Me. 297, 45 Atl. 31; Wadsworth v. Dunnam, 117 Ala. 661, 23 South. 699. Cf. Shaw v. Carpenter, 54 Vt. 155, 41 Am. Rep. 837. See, also, Shaw v. Carpenter, 54 Vt 155, 41 Am. Rep. 837.

71 Crookshank v. Rose, 5 Car. & P. 19; Warren v. Chapman, 105 Mass. 87. See, also, Hynds v. Hays, 25 Ind. 31.

72 Pickering v. Railway Co., I▲ R. 3 C. P. 250; U. S. v. Bradley, 10 Pet. (U. S.) 343, 9 L. Ed. 448; Rand v. Mather, 11 Cush. (Mass.) 1, 7, 59 Am. Dec. 131; Anson, Cont. (4th Ed.) 189; Clark, Cont. (2d Ed.) 322.

73 Clark, Cont. (2d Ed.) 342.

it is made, it will be enforced even in a state where it could not be lawfully made." But, if the sale would be invalid in the state where it is attempted to be made-that is, where the property would pass-it will not be enforced there," or in a jurisdiction where such a sale would be valid." And the comity which induces a state to enforce a foreign contract does not extend to the enforcement of a contract entered into with the design of evading its laws. Accordingly, a sale of intoxicating liquors or other goods, executed with the mutual design of reselling in violation of the laws of another state, will not be enforced in the state whose laws are sought to be violated," or even in the state where the sale is made.78

The validity of a sale is determined by the law in force at the time of its execution, and a subsequent change in the law will not validate an invalid sale."

14 Greenwood v. Curtis, 6 Mass. 358, 4 Am. Dec. 145; Orcutt v. Nelson, 1 Gray (Mass.) 536; Torrey v. Corliss, 33 Me. 333; Dame v. Flint, 64 Vt. 533, 24 Atl. 1051; Braunn v. Keally, 146 Pa. 519, 23 Atl. 389, 23 Am. St. Rep. 811; Wagner v. Breed, 29 Neb. 720, 46 N. W. 286; Lynch v. Scott, 67 N. H. 589, 30 Atl. 420; Miller Brewing Co. v. De France, 90 Iowa, 395, 57 N. W. 959; Westheimer V. Weisman, 60 Kan. 753, 57 Pac. 969.

15 Wasserboehr v. Boulier, 84 Me. 165, 24 Atl. 808, 30 Am. St. Rep. 341; Gipps Brewing Co. v. De France, 91 Iowa, 108, 58 N. W. 1087, 28 L. R. A. 386, 51 Am. St. Rep. 329; Julius Winkelmeyer Brewing Ass'n v. Nipp, 6 Kan. App. 730, 50 Pac. 956.

76 Theo. Hamm Brewing Co. v. Young, 76 Minn. 246, 79 N. W. 111. "Waymell v. Reed, 5 Term R. 599; Webster v. Munger, 8 Gray (Mass.) 584; Gaylord v. Soragen, 32 Vt. 110, 76 Am. Dec. 154; Fisher v. Lord, 63 N. H. 514, 3 Atl. 927; Davis v. Bronson, 6 Iowa, 410.

And see

cases cited ante, p. 211, notes 13-15.

Mere knowledge of the buyer's intention to resell in violation of the laws of another state is not enough. Hill v. Spear. 50 N. H. 253,9 Am. Rep. 205; Webber v. Donnelly. 33 Mich. 469; Samuel Bowman Distilling Co. v. Nutt, 34 Kan. 724, 10 Pac. 163; ante, p.

211.

47 N.

78 Graves v. Johnson, 156 Mass. 211, 30 N. E. 818, 15 L. R. A. 834, 32 Am. St. Rep. 446; Wasserboehr v. Morgan, 168 Mass. 291, E 126. And see Bollinger v. Wilson, 76 Minn. 262, 266, 79 N. W. 109, 77 Am. St. Rep. 646; ante, p. 212. 19 Roby v. West, 4 N. H. 285, 17 Am. Dec. 423; sel, 47 Me. 58; Bailey v. Mogg, 4 Denio (N. Y.) lishing Co., 41 Minn. 188, 42 N. W. 872, 4 L. R. A. 466, 16 Am. St. Rep. 695; Clark, Cont. (2d Ed.) 346.

TIFF.SALES (2D ED.)-15

60;

Banchor v. Man-
Handy v. Pub-

CHAPTER VII.

CONDITIONS AND WARRANTIES.

70-72. In General.

73-75.

Warranties.

76. Implied Warranty of Title.

77. Implied Warranty in Sale by Description.
78. Implied Warranties of Quality.

79. Implied Warranties in Sale by Sample.

IN GENERAL

70. PERFORMANCE OF CONDITIONS.

71.

Where the obliga

tion of either party to a contract to sell or a sale is subject to any condition which is not performed, such party may refuse to proceed with the contract or sale, or he may waive performance of the condition. If the other party has promised that the condition should happen or be performed, such first mentioned party may also treat the nonperformance of the condition as a breach of warranty.1

CONDITIONS AND WARRANTIES. Broadly speaking, any promise by the seller with reference to the goods which are the subject of a contract of sale is termed a "warranty." In a narrower sense, the term "warranty" is confined to such a promise when it is collateral to the main purpose of the contract and is intended by the parties to be such that its breach shall give rise to a claim for damages, but not to a right to reject the goods and treat the contract as repudiated. A promise with reference to the goods, if it is intended to be such that its performance by the seller shall be a condition of the obligation of the buyer to perform his promise to accept and pay for the goods, is often itself termed a "condition."

72. FULFILLMENT OF WARRANTY, WHEN A CONDITION. Where the property in the goods has not passed, the buyer may treat the fulfillment by the seller of his obligation to furnish goods as described and as war

1 Sales Act, § 11 (1).