contract while sober. But contracts by a person who has been found an habitual drunkard cannot be sustained by proof that the promisor was sober when they were made; the incapacity is continuous until the commission is superseded.2 But a person cannot avoid his own agreement merely upon the ground of the intoxication of the other party with whom he has contracted; and if the latter, after becoming sober, ratifies the agreement made whilst intoxicated, it becomes binding on both sides. A person in a state of intoxication may render himself liable by an implied contract to pay for necessaries supplied, or necessary services rendered to him, whilst in that state." The contracts of a person intoxicated at the time they were made are voidable, but not void; and to defend against a contract on the ground of drunkenness, it must have been rescinded by restoring whatever was received as the consideration thereof. It is held in several cases that drunkenness of the maker of negotiable paper is no defense against a bona fide holder for value without notice. ILLUSTRATIONS.-A, when sober, bid at a judicial sale of land. When so drunk as to suspend the use of his reason and understanding, he signed the written contract and paid a portion of the price. Held, that he could avoid the contract and recover back the money paid: Bush v. Breinig, 113 Pa. St. 310; 57 Am. Rep. 469. Gardner v. Gardner, 22 Wend. 526; 34 Am. Dec. 340; Van Wyck v. Brosher, 81 N. Y. 262. 2 Wadsworth v. Sharpsteen, 8 N. Y. 388; 59 Am. Dec. 499. 3 Matthews v. Baxter, L. R. 8 Ex. 132; Carpenter v. Rodgers, 61 Mich. 384; 1 Am. St. Rep. 595. 625. Gore v. Gibson, 13 Mees. & W. Joest v. Williams, 42 Ind. 565; 13 Am. Rep. 377. 6 State Bank v. McCoy, 69 Pa. St. 204; 8 Am. Rep. 246; Miller v. Finley, 26 Mich. 249; 12 Am. Rep. 306; Caulkins v. Fry, 35 Conn. 170. PART III. THE MATTER OF THE CONTRACT. CHAPTER CXV. ILLEGAL CONTRACTS. § 2392. Contracts violating principles of law void generally. § 2393. Contracts violating injunctions of statutes void generally. § 2394. Contracts violating foreign laws. § 2395. Influencing or interfering with government or legislature or public officers. Sale of public offices-Salaries of public officers. § 2396. § 2397. § 2398. Influencing public justice -- Compounding offenses. § 2402. § 2403. Maintenance and champerty. Contract between attorney and client for compensation out of recovery. Contracts in total restraint of trade void-Restraint must be reasonable. Contracts unlimited as to space, but limited as to time. Contracts limited as to space, but unlimited as to time. Other cases in which an unlimited or partial restraint is valid. § 2404. § 2405. § 2406. § 2407. § 2408. What is breach of contract. § 2429. § 2430. Agreement good on its face, but for illegal purpose. § 2433. Illegality occurring subsequent to making of contract. § 2392. Contracts Violating Principles of Law Void Generally. Illegality in a contract will render it void. The law prohibits, as a rule, whatever is contrary to public policy or to morality; and a contract to do what the law thus prohibits, or to do something else in consideration thereof, is void, and not enforceable. A contract is not void as against public policy, unless it is injurious to the interests of the public, or contravenes some established interest of society. But where a contract belongs to that class, it will be declared void, although, in that particular instance, no injury to the public may have resulted. What constitutes public policy, and what contravenes it, is a question of law for the court, and not one of fact for the jury. On this principle these contracts have been held void: An agreement in consideration of a subscription to a railroad that the corporation would locate its depot on certain lands of the subscriber; an agreement in consideration of a grant of a right of way that the railroad would erect and maintain its depot on 1 Spalding v. Preston, 21 Vt. 9; 50 Am. Dec. 68; Ohio etc. Ins. Co. v. Merchants' etc. Ins. Co., 11 Humph. 1; 53 Am. Dec. 742; Blasdel v. Fowle, 120 Mass. 447; 21 Am. Rep. 533; Scudder v. Andrews, 2 McLean, 464; Milne v. Huber, 3 McLean, 212; Wooten v. Miller, 15 Miss. 380; Adams v. Rowan, 16 Miss. 624; Davis v. Holbrook, 1 La. Ann. 178; Leavitt v. Palmer, 3 N. Y. 19; 51 Am. Dec. 333; City Bank v. Perkins, 29 N. Y. 554; 86 Am. Dec. 332; Schmidt v. Barker, 17 La. Ann. 261; 87 Am. Dec. 527; Bowman v. Gonegal, 19 La. Ann. 328; 92 Am. Dec. 537; Norton v. Dawson, 19 La. Ann. 464; 92 Am. Dec. 548; Holcomb v. Weaver, 136 Mass. 2605; Cumpston v. Lambert, 18 Ohio, 81; 51 Am. Dec. 442; Pickett v. School Dist., 25 Wis. 551; 3 Am. Rep. 105; Bledsoe v. Jackson, 4 Sneed, 429; Mercier v. Mercier, 50 Ga. 546; 15 Am. Rep. 694. 2 Peterson v. Christensen, 26 Minn. 377. 3 Fireman's Ch. Ass'n v. Berghaus, 13 La. Ann. 209. Smith v. Du Boise, 78 Ga. 413; 6 Am. St. Rep. 260. Fuller v. Dame, 18 Pick. 472. 3 the grantor's lands, and not have any other within a certain distance thereof; or that a railroad would maintain its principal place of business at a certain place, and "not build a side-track to its main line in the town of E."; a contract by the president and directors of a railroad company for the purchase of claims against the company; a provision in a contract between a telegraph company and a railroad company that the former will transmit the family, private, and social messages of the executive officers of the latter free; a contract for the sale and transfer of the property and franchises of a railroad company, before its road has been completed; a contract to waive all damages for injuries resulting from negligence; an agreement whereby a physician is to explain to a railroad company the injuries received by A at the hands of the company, and the physician's compensation is to vary according to the sum which the company shall pay A;' a contract of sale of stock of a corporation, which necessarily implies that the seller intended to derive and the buyer to give him a private advantage not shared by the other stockholders; an agreement to divide a school district in consideration of the surrender of property rights by the new district;" an agreement between the father and grandfather of an infant legatee, on one side, and an heir at law, not a legatee, on the other, that the latter should resist and the former should not insist on probate, and if the will should 1 St. Jo etc. R. R. Co. v. Ryan, 11 Kan. 602; 15 Am. Rep. 357; Marsh r. R. R. Co., 64 Ill. 414; 16 Am. Rep. 564; St. Louis etc. R. R. Co. v. Mathers, 71 Ill. 592; 22 Am. Rep. 122; Willian son v. R. R. Co., 53 Iowa, 126; 36 Am. Rep. 206. 2 Pueblo etc. R. R. Co. v. Taylor, 6 Col. 1; 45 Am. Rep. 512. A contract to pay money in consideration that the company will build its road to a certain point is valid: First Nat. Bank v. Hendrie, 49 Iowa, 402; 31 Am. Rep. 153. 393. McDonald v. Haughton, 70 N. C. Western Union Telegraph Co. v. R. R. Co., 1 McCrary, 418. Clarke v. R. R. Co., 5 Neb. 314. 6 Cook v. R. R. Co., 72 Ga. 48; Kansas Pacific R. R. Co. v. Peavey, 29 Kan. 169; 44 Am. Rep. 630; Lake Shore etc. R. R. Co. v. Spangler, 44 Ohio St. 471. 7 Thomas v. Caulkett, 57 Mich. 392; 58 Am. Rep. 369. 8 Guernsey v. Cook, 120 Mass. 501. State v. Kidd, 63 Wis. 337. be set aside, the heir should pay the infant the amount of his legacy, the object being to defeat a residuary legatee;1 a contract to abandon the prosecution of proceedings for the establishment of a public highway in consideration of money to be paid therefor; a contract by which one trustee agrees, for a pecuniary compensation to himself, to permit his co-trustee to have control of the trust fund; an agreement between tenants in common that the survivor shall take the other's estate;* a contract between two creditors interested in a public sale about to be made by an assignee in bankruptcy, that one will not bid against the other, and in consideration thereof, that the latter will pay to the former a certain sum of money; an agreement for a consideration to renounce an executorship; a contract by a physician to take the office of another, and practice therein in the name of the other; a contract to buy of a director and president of a national bank shares of its stock, on condition that the purchaser shall be made cashier of the bank; an agreement by an agent to induce his principals to discharge their present attorney and employ another, who agrees in consideration thereof to divide his fees with the agent.9 8 An agreement that one party thereto may, if necessary, use force in taking possession of certain property, in case the other party fails to comply with its conditions, is not an agreement to do an unlawful act.10 A contract by a corporation organized to build a public bridge with the 1 Gray v. McReynolds, 65 Iowa, 461; 54 Am. Rep. 16. 2 Jacobs v. Tobiason, 65 Iowa, 245; 54 Am. Rep. 9. Foote v. Emerson, 10 Vt. 338; 33 Am. Dec. 205. Hershy v. Clark, 35 Ark. 17; 37 Am. Rep. 1. Dudley v. Odom, 5 S. C. 131; 22 Am. Rep. 6. As to agreements not to bid at auction, see Auctioneers, Division I. 6 Ellicott v. Chamberlin, 38 N. J. Eq. 604; 48 Am. Rep. 327. Jerome v. Bigelow, 66 Ill 452; 16 Am. Rep. 597. 8 Noel v. Drake, 28 Kan. 265; 42 Am. Rep. 162. Byrd v. Hughes, 84 Ill. 174; 25 Am. Rep. 442. 10 Ambrose v. Root, 11 Ill. 497; 52 Am. Dec. 456. |