poration, the fiduciary relation of an agent, engineer, officer, or director of a corporation to his company and its stockholders would prevent him from having any personal interest in a contract.' A contract by a freight-agent to share with a contractor in the profits of a contract, the only service of tho freight-agent being to allow the contractor a low freight rate on materials. of construction, is void as against public policy. An agreement by the bookkeeper of a corporation to disclose its financial condition to another is void, and it is immaterial that such other is a stockholder of the corporation. An agreement between two real-estate agents representing different principals to divide commissions in case they effect a sale between their respective principals is void as against public policy, and the fact that the sale was effected at the valuation that each principal had set on his property with his agent will not give validity to the agreement. A contract made by a person on behalf of two parties and acting in the capacity of agent for both is voidable. It must be ratified or adopted to become binding. Such a contract may be ratified by a municipal corporation. An agreement by the superintendent and general manager of a mill company in consideration of five thousand dollars to use his influence and authority to secure the removal of the mill to another place and the extension of its logging-roads to that place is void as against public policy. So where an architect and defendant agreed to build houses for sale, the latter to advance the money and the former to contribute his skill and time as superintendent, each to have half of the profits after sale, it was held that the defendant could not charge plaintiff with the land used for building purposes at a greater price than its original cost, though it was bought with money furnished by him and the title was taken in his name."

However, a contract founded on a promise to disclose information as to a place where a railroad company intended to locate its depot is not void as against public policy where there is nothing to show that the plaintiff obtained his information by reason of any relation of trust or confidence that he bore to the railroad company, or that it had any interest in the subjectmatter of the contract, or that it attempted to keep the location of the depot a secret.**

86. A Man Cannot by Contract Forfeit Certain Rights and Privileges the Protection of Which the Law Guarantees.-"The Declaration of Independence holds the truth self-evident that all men were endowed by their Creator with certain inalienable rights; that among these are life, liberty, and

1 Bestor v. Wathen, 60 Ill. 138. Barclay v. Williams, 26 Ill. App. 213 [1887].

3 Davenport v. Hulme (Super.), 32 N. Y. Supp. 803. Rep. 415.

Levy v. Spencer (Colo. Sup.), 33 Pac.

5 City of Findlay v. Pertz (C. C. A.), 66 Fed. Rep. 427.

Lum v. Clark (Minn.), 57 N. W. Rep. 662. Budd v. Scudder (N. J. Ch.), 26 Atl. Rep. 904.

Green v. Brooks (Cal.), 22 Pac. Rep. 849; but see Wills v. Abbey, 27 Tex. 202.

* And see Secs. 42, supra, and 508-518, infra.

the pursuit of happiness"; and, being inalienable, no one can give them away for or as a consideration; and to these might have been added one's character, religion, citizenship, and many other things which cannot be for sale or subjects of exchange.'

Such an agreement would be against the policy of the law, and against public policy. If the undertaking tends to injustice or oppression, restraint of liberty, commerce, or natural or legal right; if it tends to obstruct justice, or to violate the law, or is against good morals-it is against public policy and cannot support a contract. It does not matter that the parties

are innocent of any design to violate the law; if the effect of their agreements or acts is against the laws or public policy, then the contract must fail.

It is contrary to public policy for a person to make agreements to forego his inalienable natural rights. A contract by which a person agrees not to demand damages or compensation for injuries that may arise from another's acts or negligence is within this class. Such contracts are those of carriers of freight and passengers, as railroad, express, and telegraph companies, that seek to avoid or limit their responsibility for negligence or delay in transporting or delivering goods or messages by notices, clauses, conditions, or even by deeds. Such agreements and contracts have frequently been. declared inoperative and void. It may be doubted even if they may so contract with persons carried gratuitously, i. e., with persons traveling on free passes. It has frequently been held that they could not, though there are cases to the effect that they can.' A railroad company was held liable for causing the death of a passenger by the negligence of its employees notwithstanding he was at the time riding upon a free pass upon which was a stipulation signed by him releasing the company from all liability for injury to his person or property while using the pass. A contract on a telegraph-message blank that the company will not be liable for but ten times the cost of sending the message has been held invalid so far as the damage is the result of negligence on the part of the company or its servants."

*

Parties cannot by private agreement in advance of a controversy oust the courts of their proper jurisdiction. It is true that a matter in controversy or a pending civil suit may be finally submitted to arbitration or to the

19 Amer. & Eng. Ency. Law 883. 99 Amer. & Eng. Ency. Law 880.

19 Amer. & Eng. Ency. Law 913: 26 Amer. Law Rev'w 212 [1892]; 21 Amer. Lav Rev'w 506; L. S. & M. S. Ry Co. v. Spangler (Ohio), 22 The Reptr. 734 [1886]. 44 Ohio St. 471; Porter v. N. Y. L. E. & W. R. Co., 129 N. Y. 624 [1891].

• See cases just cited, and see 36 Alb. Law

Jour. 404. A recent case carried to the court of appeals in New York held not. Porter v. N. Y. L. E. & W. R. Co., 129 N. Y. 624, [Dec. 1891]; see also Rose v. Des Moines R., 39 Iowa 246, 20 Amer. Ry. Rep. 326; and many cases cited in note p. 338.

Marr v. Telegraph Co. (Tenn.), 3 S. W. Rep. 496 [1887], 85 Tenn. 529.

*See Engineers' and Architects' Employment, Sec. 864, infra.

decision of a single judge, or by omitting to exercise their rights the parties may waive them as they choose, but they cannot by an agreement in advance, when no matter of dispute or controversy has yet arisen, forfeit their rights. to a proper adjudication in the appropriate tribunal established by law when a proper case may be presented.' It is a constitutional right, and neither a statute by the state nor an agreement of the parties made in advance under it can justify a denial of the right.* *

It is true that parties may impose as a condition precedent to an application to the courts that they shall first have settled the amount to be received by an agreed mode of liquidation or adjustment, and this in many cases provides a much more appropriate tribunal for the purpose than a jury.' The principle involved in these cases does not close the access of the parties to the courts of law, as the award of the arbiter is only enforceable there. On the same ground it is against public policy to sustain an agreement by an employee that an officer of the company employing him shall be the sole judge of the damages to be assessed for breach of the company's rules, and that the officer's decision shall be final and conclusive of the rights of the employee; but it has been held that a contract by which a railroad employee agreed, on becoming a member of the relief department. of the company, that the acceptance of relief from such department on being injured should bar his right to sue the railroad company for the injury is not one against public policy. It is not invalid in that it restricts the liabilities of railroads for the negligence of their employees." Nor is it void for want of mutuality nor for lack of consideration.' It is on this same ground of public policy that agreements by contractors to abide the decisions of civil engineers and architects as final and conclusive, without recourse to courts of law or equity, have been declared not binding, illegal, and void. The courts have held that the government guarantees every man the protection of the courts and their assistance, and that no man can enter into a contract that shall deny him this privilege and right.t

A contract of employment between a company using patented machines and a mechanical engineer which requires that any improvements in the machines made by such engineer shall belong to the company is not unreasonable nor contrary to public policy."

2

1 See Ins. Co. v. Marse, 20 Wall. 445.

See Atlanta & R Co. v. Monghan, 49 Ga. 266; Nate v. Hamilton Ins. Co., 6 Gray 174; Hobbs v. Manhattan Ins. Co., 55 Me. 421; Scott r. Avery, 5 H. of L. Cas. 811; Story Eq. Jur., § 670.

3 Monon. Nav. Co. v. Fenlon, 4 W. & S. 205; 7 Casey 306; 79 Pa. St. 480, citing engineering cases to support them.

4 White v. Middlesex R. Co., 135 Mass. 216 [1883].

*See Secs. 344-5 and 405-409, infra.

5 Chicago, B. & Q. R. Co. v. Bell (Neb.), 62 N. W. Rep. 314; Pittsburgh, etc., R. Co. v. Cox (Ohio Sup.), 45 N. E. Rep. 641; Shaver . Penna. Co. (C. C.), 71 Fed. Rep. 931.

Donald v. Chicago, B. & Q. Ry. Co. (Iowa), 61 N. W. Rep. 971.

Pittsburgh, etc., R. Co. v. Cox, supra. 8 Hulse v. Bonsack Mach. Co. (C. C. A.), 65 Fed. Rep. 864.

+ See Secs. 339-345 and 406-412, infra. See Secs. 816-825, infra.

87. Immoral Contracts.--A contract for immoral or indecent purposes will not be sustained; if it is to effect an immoral object it will not be enforced. An agreement to pay money for the use of a carriage or of a house or of furniture which is to be used for immoral purposes will not be enforced; and the same, it is submitted, might hold true if a contractor had built a house or fitted up quarters knowing they were to be employed for indecent or unlawful purposes, or for any purpose that tends to induce immorality. Such might be the erection of a still for illicit distillation, or the fitting and furnishing of a barroom in a no-license state, or the erection. or furnishing of a house of prostitution or for gambling,' or possibly of a bucket-shop or even a stock exchange.' An owner who has parted with the possession of his personal property under a contract which is against good morals and void as against public policy, the law will not aid him to recover the possession of such property, but will leave the parties in the situation in which they have placed themselves.*

3*

All contracts having for their object the "making of matches" for marriages, or the separation of man and wife, or to restrain the freedom of marriage or the right of selection of a companion, or to prohibit marriage, are against public policy, illegal, and void. Therefore a contract intended to facilitate the procuring of a divorce at the suit of either of the parties thereto is void. A contract to sell letters from persons who are diseased to a person who advertises articles and instruments to cure them is contrary to good morals and void.' No recovery can be had for the expense of printing an immoral publication."

Illicit intercourse is not a consideration for a promise to marry, and a promise to marry a woman if she will give herself up to the promisor is tainted with immorality and is not a legal contract. Such a contract must be distinguished from a promise to marry and the promisor afterward taking advantage of the trust and confidence imposed in him."

The defense of public policy proceeds not upon the idea of relief to the defendant, but protection to the public, and it is immaterial that a defendant was ignorant of the illegality." It is not therefore necessary to plead public policy to prevent a recovery on a contract invalid as against public policy."

19 Amer. & Eng Ency. Law 921; Parce v. Brooks, L. R. 1 Exch. 213; Reed Brewer (Tex.), 36 S. W. Rep. 99. * Contra Michael v. Bacon, 49 Mo. 476, and cases cited.

3 See cases collected in 9 Amer. & Eng. Ency. Law 922. Reed v. Brewer, supra, held that notes given for furniture for a hous of prostitution were void.

Hutchins. Weldin, 114 Ind. 80 [1887]. $9 Amer. & Eng. Ency. Law 918-921.

* See Sec. 76, supra.

When the immediate object of an agreement is unlawful the agreement is void,' and a contract executed in consideration of a previous illegal one is void."

A contract otherwise valid is not void in toto merely because in certain independent particulars it is broader than, or goes beyond the scope of, the law.'

1 Pollock on Contracts (4th ed.) 321.

2 Cate v. Blair, 6 Coldw. 639; Pierce v. Kibbee, 51 Vt. 559; King v. Winanto, 71 N. C. 469, also 73 N. C. 563.

8 Ragsdale v. Nagle (Cal.), 39 Pac. Rep.

628; Arnot v. Coal Co., 68 N. Y. 558. A case of making the price of coal, the plaintiff had assisted in facilitating the llegal act. And see 2 Keener's Cases on Quasi-Contracts 35.