ful those which are lawful can be enforced, but if any part of an entire consideration is unlawful all promises founded upon it are void.' If the contract is bad in part for being in violation of law, but good in part, and the good part of the contract can be separated from the bad, that which is good can be enforced in law. The possible invalidity of a provision in the contract for referees in case of differences rising was held not to invalidate the contract as a whole.' When a contract is open to two constructions, the one lawful and the other unlawful, the former must be adopted.* In all contracts in writing and under seal signed by the parties bound thereby, a valid consideration is implied. Equity will not relieve a surety from liability on an instrument under seal merely for want of consideration when no consideration was contemplated by the parties." Pollock on Contracts (4th. ed.) 321; Reed v. Brewer (Tex.), 37 S. W. Rep. 418. Jackson v. Shawl, 29 Cal. 267 [1865]; Erie R. Co. v. Union Loc. & Express Co., 35 N. J. Law 240 [1871]. Union Pac Ry. Co. Chicago, R. I. & P. Ry. Co., 16 Sup. Ct. Rep. 1173. Hobbs v. McLean, 117 U. S. 567 [1886]; 6 followed in United States v. Central Pac. R. Co, 118 U. S. 235 [1886]. Warren Johnson (Kan.), 17 Pac. Rep. 592 [1888]; Erickson v. Brandt (Miun.), 55 N.W. Rep. 62; Fuller v. Artman, 24 N. Y. Sup. 13. Meek . Frantz (Pa. Sup.), 88 Atl Rep. 418. CHAPTER III. LAW OF CONTRACTS. ESSENTIAL ELEMENTS OF A CONTRACT THE SUBJECT-MATTER. THE ACT TO BE PERFORMED OR THING ТО Б ERECTED, FURNISHED, OR SUPPLIED. 71. Relation of the Subject-matter and the Consideration.-The act, undertaking, or promise on the part of one party is the consideration for the act, agreement, or obligation of the other party. In fact it cannot be said that the undertaking of the second party is any less the consideration. of the contract than is the undertaking of the first party. They are considerations one for the other, and what has been said of the legality or validity of the consideration will be quite as true for the act or promise given in return-i. e., the act or subject-matter must be a lawful undertaking and one not contrary to the policy of the law. Whatever may be said of the acts or undertakings of one party will hold equally true for the acts or undertakings of the other party. The consideration on both sides in construction contracts is usually an act or a promise to perform certain acts. The consideration on one side may be a material object, as a sum of money or a cargo of lumber, or it may be a circumstance or a condition of detriment. It may be an act or the refraining from doing some act. Whether a material object or a condition, the contract obligation existing between two parties is usually, if indeed not always, the result of an act on the part of one or both parties. It is not the mere existence of the money or the lumber that is the consideration of the contract, but the act of paying the money or the delivery of the materials is the real consideration of the contract. The loss of the ship, the burning of the house, or the death of the person may mark the hour from which the company is liable for the insurance, but the right to demand the insurance dates from the proof of certain conditions which requires an act on the part of one of the parties. The consideration may be either the doing of an act or the giving of a promise.' AS REGARDS THE ACT TO BE DONE OR UNDERTAKEN OR THE CONSIDERATION FOR WHICH IT IS UNDERTAKEN. 72. There Must be a Lawful Subject-matter-The Promise Must be to Perform a Lawful Act.-A legal contract requires that the obligations as 13 Amer. & Eng. Ency. Law 831. assumed shall be lawful acts or undertakings not only within the written law of the land, but that they shall be in harmony with the law and in keeping with the policy of the government and good society, and that their execution shall be possible. The consideration on both sides can be neither wicked nor prohibited by law.' It therefore follows that the consideration, the act or undertaking, of either party must not be opposed to the constitution of the United States or of the State; it must not be contrary to law, and the effect of the contract must not be to defraud or injure the gov ernment. Among the latter agreements are those that promote smuggling, evade the internal-revenue laws, assist in rebellion or riot, aid enemies of our country, effect fraud in elections, or interfere with legislation or the administration of justice by our courts. Contracts to build ships of war or to manufacture arms or to furnish supplies in violation of the laws and treaties of our country will not be recognized by our courts. 73. Contracts the Effect of Which is to Influence Public Officers.- A contract must not tend to influence legislative bodies or public officers in the discharge of their duties. A contract to pay a certain sum of money annually for ten years in consideration of the owners offering their building to the government for a post-office at a nominal rent and using their personal influence and proper persuasion to have the post-office located in that building was held illegal and against public policy, and, the consideration being indivisible and partly illegal, the whole contract was declared void.' If the owners were not to have used their influence and persuasion with the public officers it seems the contract would have been legal.' If there be no evidence that a politician had influenced any legislators or public officers in his behalf, then the contract might be held valid and not necessarily against public policy. The government may enter into a lease of a building for a nominal sum, the rent being made small to induce it to locate the office in such building. Such a lease is not contrary to public policy in the absence of anything to show that the building is not a convenient and desirable one for the purpose.' An agreement by a public officer to accept a greater or less fee than is prescribed by statute, or not to avail himself of a statutory mode of enforcing the collection of his fees, is against public policy, as is also a contract to delegate his official duty, or to pay a rival candidate half of the profits of an office, or for a deputy to divide all his fees with his principal, such fees being payable directly to such deputy, or for the principal to appoint a certain person as deputy in case he is elected." 1 Pollock on Contracts 322. 29 Amer. & Eng. Ency. Law 916; Elkart Co. Lodge v. Crary, 98 Ind. 238 [1884]. Fearnley v. De Manville (Colo. App.), 39 Pac. Rep. 73. 3 ✦ Beal v. Polhemus, 34 N. W. Rep. 532, many cases cited. Deyoe v. Woodworth (N. Y. App.), 39 Contracts for public favor cr personal influence with the government or with public officials are against public policy. Such are contracts to pay officers for their influence in procuring contracts for work, as to have a certain person's bid accepted;' or to procure sales, or to induce any one to do acts inconsistent with his duty. Any agreement which contemplates the use of private influence to secure legislation is void,' but a contract to draft bills, explain them to members of the legislature, and request their introduction is not. An agreement to procure the passage of a bill declaring certain railroad lands forfeited to the government, so that one party to the contract might be benefited as a bona fide settler under the homestead laws, is void as against public policy. Contracts with legislators to secure franchises, enactments, and licenses for public works, by would-be contractors or companies that want charters for special works, are within the same class. A mortgage given to secure the payment of compensation for procuring the appointment or resignation of a public officer is void as against public policy. Money paid under a contract for the sale of property which is contrary to public policy, because of a promise by one of the parties to resign a public office and use his influence to securce the other's appointment, cannot be recovered on refusal of the seller to perform. An assignment of, or a lien on, the unearned salary or fees of a public officer, given by him, is void as against public policy.' 74. Contracts for the Perversion of the Courts.-A legal contract cannot have for its object the perversion of our courts or the obstruction of justice. An agreement to procure evidence in consideration of a part of the sum recovered is against public policy;' and one to stifle a prosecution or to withhold testimony therein is absolutely void, and no recovery can be had on a promissory note given in consideration of such an agreement.10 Agreements to pay money to a witness to keep out of court," or to Induce a public officer to violate his trust or neglect his duty, or to do things inconsistent with his official duties," to gain particular official Rep. 343. 1 Davidson v. Seymour, 1 Bosw. (N. Y.) 88; Halcomb . Weaver, 136 Mass. 265; and see Bermudez Asph. Pav. Co. v. Critchfield, 62 Ill. App. 221. * Burney's Heirs v. Ludeling (La.), 16 So. Rep. 507. Chesebrough v. Conover (N. Y. App.), 35 N. E. Rep. 633; 21 N. Y. S. 566 affirmed. Houlton . Dunn (Minn.), 61 N. W. Rep. 898; but see contra Houlton v. Nichol (Wis.). 67 N W. Rep. 715. 733. Basket . Moss (N. C.), 20 8. E. Rep. 'Edwards . Randle (Ark.), 38 S. W. State Nat. Bank v. Fink (Tex. Sup.), 24 S. W. Rep. 256; Williams v. Ford (Tex. Civ. App.), 27 S. W. Rep. 723 8 Bierbauer v. Wirth, 5 Fed. Rep. 336 [1880]. Lyon Hussey (Sup.), 31 N. Y. Supp. 281; Kennedy v. Hodges (Ga.), 25 S. E. Rep. 493. 10 Friend v. Miller (Kan.), 34 Pac. Rep. 397. 11 In re Brule (D. C.), 71 Fed. Rep. 943. 12 Robinson v. Patterson (Sup. Ct. Mich.), July, 1888: Schlass v. Hewlett (Ala.). 1 So. Rep. 263. favor,' or to influence legislators,' and similar undertakings, are illegal contracts, and will not be enforced by our courts.' 75. The Undertaking Must Not be Contrary to Federal or State Laws, or in Disregard of Police Regulations or City Ordinances. It is not necessary that the parties should actually contract to do the acts specially prohibited, but it is sufficient if the tendency is to subvert the laws, or overthrow, defraud, or injure the government or its institutions. If the contract is made for the purpose of using the subject-matter in a manner prohibited by law there can be no recovery on the contract. Mere knowledge of the use to which the things are to be put will prevent recovery for them if the act prohibited amounts to a felony. Knowledge alone, even if the act does not amount to a felony, will preclude recovery in England. In short if the agreement is to do anything to facilitate the doing of an unlawful act it is invalid, and there can be no recovery. A case in trade is reported where a quantity of candy and silverware was sold, to be put up in "prize candy packages"; it was held that the transaction, having been for the purpose of aiding in a lottery, which was prohibited by the New York statutes, it was void and that no recovery could be had upon the contract.' 76. The Contract Must Not be to Invade Property Rights, to Commit or to Maintain a Nuisance, to Obstruct a Public Way or Stream, or to Commit a Trespass.-Some cases of interest to engineers and contractors will best demonstrate these points of contract law. Thus it is submitted that a contract to erect a bridge over, or a tunnel under, the Hudson River at New York, entered into before the necessary franchise had been obtained from the state and Federal governments would not be a binding obligation; or a contract to drive piles or build a pier out into the bay beyond the harbor-line; or to do work that would necessarily obstruct a public street or waterway." A contract to build a railroad or canal through a state, territory, or reservation, entered into before the corporation had obtained its franchise or authority from the state to build, would not be a valid contract; certainly the contractor could not be required to fulfill his contract until the necessary license and permission had been obtained. Such cases come up not infrequently; such are contracts to construct waterworks or irrigation ditches, canals or sewers when the appropriation or pollution of the water would be an unlawful act, or to drive a tunnel under a government fortress, as occurred on the West Shore Railroad at West Point. 13 Fed. Rep. 1; Hager v. Callin. 18 Hun 448 [1879]; Staunton v. Parker, 19 Hun 55 [1879]. 22 Amer. & Eng Ency Law 366. 3 See a good coll ction of cases in 9 Amer. & Eng. Ency. Law 879-930. 4 Caanan . Bryce, 3 B. & Ald. 179; McKimmel v. Robinson, 3 M. & W. 434. 5 Hanauer Doane, 12 Wall. 342; but see Fedder v. Odorn, 2 Heisk. 68. The question has been asked 62 Keener's Cases on Quasi-Contracts 35, note. Hull v. Ruggles, 56 N. Y. 424; see also Arnot v. Coal Co.. 68 N Y. 558; and Lynch v. Resenthal (Ind.), 42 N. E. Rep. 1103, a contract for sale of lots to subscribers to be determined by lot, held void. Whitfield v. Zellnor, 2 Cushman (Miss.) 663, work enjoined as a nuisance. |