cohabitation is open and notorious, is an illegal contract.78 Even though an agreement be an innocent one of itself, if one of the parties intends to perform for an immoral purpose, it is illegal. Thus, it is perfectly permissible to hire a cab or to rent a flat, but it is not permissible if done with the intention of violating good morals."

108. Contracts in restraint of trade.-Contracts in restraint of trade are of two kinds: (1) those between individuals for the benefit of one at the other's expense; and (2) combinations for mutual benefit.

Originally, any contract in restraint of trade was invalid, but with the growth of trade, partial restraint was allowed as to time or as to place, so long as it was not as to both. Later, the case of Maxim-Nordenfeldt Guns & Ammunition Co. v. Nordenfeldt 80 established the correct test, namely, whether the restraint is reasonably necessary between the parties for the protection of their business and is not injurious to the public.s1 Under this rule, a promise not to divulge a trade secret may be rightfully upheld although the agreement is unlimited both as to time and place.82 This rule also permits the protection of a holder of a patent, although a monopoly is thereby created. But a patent is in reality a monopoly which has been authorized by the govern

78 Edmonds v. Hughes, 115 Ky. 561; Boigneres v. Boulon, 54 Cal. 146, LEADING ILLUSTRATIVE CASES.

79 Ernest v. Crosby, 140 N. Y. 364; Graves v. Johnson, 156 Mass. 211. so 1894, 1 Ch. C. A. 630 (Eng.); Bishop v. Palmer, 146 Mass. 469, LEADING ILLUSTRATIVE CASES.

81 Wood v. Whitehead Bros. Co., 165 N. Y. 545.

82 Martin v. Murphy, 129 Ind. 464.

ment and is, therefore, presumably not prejudicial to the public.83

Attempts by dealers to control prices are contrary to public policy if the commodity is a necessity.8* Certain combinations will be permitted, however, where the purpose is to prevent ruinous competition. The test again is whether the restraint is reasonable and not prejudicial to the public interest. Thus, a corner of a necessity of life is not only illegal but criminal as well.85 Even owners of patented articles have no right to combine for the purpose of restraining competition.86 The same rule applies to an unpatented product of a patented machine.87

The Sherman Act, called the anti-trust law, was passed by Congress in 1890. Its provisions forbid any combination in restraint of trade. Under this act, various monopolies have been prosecuted. This law has been construed by the Supreme Court of the United States to permit a reasonable restraint of trade. Many of the large railroads and corporations have been forced to dissolve by virtue of its scope. 88

It is thought by some that agreements among workmen to control the price of their labor should be held illegal. The weight of authority, however, regards such combinations as legal so long as unlawful means are not used to gain their ends. The courts seem to feel that the workingman needs greater protection

83 Good v. Daland, 121 N. Y. 1.

84 Samuels v. Oliver, 130 Ill. 73; Leonard v. Poole, 114 N. Y. 371.

85 Wright v. Cudahy, 168 Ill. 86.

86 Vulcan Powder Co. v. Powder Co., 96 Cal. 510.

87 Standard Mfg. Co. v. United States, 33 Sup. Ct. 9.

ss Northern Securities Co. v. United States, 193 U. S. 197; United States

v. American Tobacco Co., 221 U. S. 106; see subject, TRUSTS & MONOPOLIES.

than the capitalist in order that his skill may be developed and in order that he may not be subjected to the dangers of too keen competition. The true test is to determine from the circumstances of each case whether the restraint is reasonably necessary to the parties and is not prejudicial to the interests of the public.89 Any concerted attempts to interfere with trade which comes under the head of interstate commerce is a violation of the Sherman Act.90

Certain agreements are illegal because they tend to prejudice interstate or international relations. A contract by a citizen of one state with subjects of a belligerent state (one at war) is illegal."1 Similarly, an agreement which contemplates action hostile to a friendly nation or its laws is void."

92

109. Contracts restraining marriage.-Agreements harmful to the marriage relation are illegal. The policy of the law is against any harm to the freedom or security of marriage. So, a promise, although there was a consideration, to marry no one but the promisee, was held to be void in Lowe v. Peers.93 Similarly, the court held illegal a wager that one would not marry for five years.94 Attempts to make pecuniary gain from marriage are illegal, and under this rule fall the operations of the marriage bu

89 Kemp v. Division No. 241, 255 Ill. 213; 7 Ill. Law Review 320; Hey v. Wilson, 16 L. R. A. (N. S.) 85, note.

90 Lowe v. Taylor, 208 U. S. 274.

91 Montgomery v. United States, 15 Wall. 395 (U. S.).

92 Graves v. Johnson, 156 Mass. 211; Corbin v. Houlehan, 100 Me. 246, LEADING ILLUSTRATIVE CASES.

934 Burrows 2225 (Eng.).

94 Hartley v. Rice, 10 East. 22 (Eng.); Sterling v. Sinnickson, 5 N. J. L. 756, LEADING ILLUSTRATIVE CASES.

96

reaus.95 Thus, in the case of In re Grobe's Estate,' the plaintiff was to receive a fee for information concerning a woman whom the defendant desired to marry. The suit to recover the fee failed, for the agreement was held to be analogous to a marriage broker's illegal contract. On the other hand, agreements not to marry a person under a certain age, or in a certain degree of relationship, or in a certain family, or not to marry a second time, are valid." These decisions find their basis in the public policy which favors a limited restriction of marriage along certain lines, as infancy, relationship, and good morals.

Agreements providing for separation in the future are invalid because they tend to make the marriage relationship unstable. But where separation has taken place or has been decided upon, they are enforcible, as the best way out of a difficulty which already exists.98 But any collusion between the parties in regard to a divorce is illegal." Moreover, an agreement to pay a consideration for the performance of marriage duties is void. The law assumes that the parties will perform their marital obligations without inducement.1

110. Fiduciary relations.-A contract which attempts to corrupt one who occupies a fiduciary relation with reference to others is illegal. Thus any

95 Duval v. Wellman, 124 N. Y. 156.

96 127 Iowa 121.

97 Hogan v. Curtin, 88 N. Y. 162; Siddons v. Cockrell, 131 Ill. 653.

98 Luttrell v. Boggs, 168 Ill. 361; Baun v. Baun, 109 Wis. 47.

99 Irvin v. Irvin, 169 Pa. 529; Beard v. Beard, 65 Cal. 354.

1 Michigan Trust Co. v. Chapin, 106 Mich. 384; Miller v. Miller, 78 Iowa 177.

agreement which tends to place a person under such influences or temptations as will affect the rights of third persons or cause him to violate a confidence placed in him are opposed to public policy. A good illustration is a promise to give another a position if the promisor becomes an officer of a corporation through the promisee's influence.2

111. Effect of illegality—In general. Thus far, the different classes of objects which are illegal have been considered. As far as the validity of the contract is concerned, the law makes no distinction between acts malum in se, which are inherently bad or immoral, and acts malum prohibitum, which are merely forbidden acts. If the object is illegal, the contract is invalid. But this distinction as to inherent badness is of considerable value in determining the relief which will be granted to the parties and especially in considering the rights of third parties.

In no event may an illegal contract, known by the parties to be so, be enforced as between the parties.* Neither will the law, as a rule, aid the promisee in recovering his consideration. The courts will not assist a party who must disclose and rely upon an illegal transaction as the ground of his claim. Some cases hold, however, that where a party shows an intention of abandoning the contract, if he does so in time, the amount expended may be recovered. It is 2 West v. Camden, 135 U. S. 507; Greenhood, Public Policy, pp. 292-326. 3 United States v. Owens, 2 Peters 527 (U. S.).

4 Brady v. Huber, 197 Ill. 291, LEADING ILLUSTRATIVE CASES; Szlauzis v. Szlauzis, 255 Ill. 314, LEADING ILLUSTRATIVE CASES.

5 McNulta v. Corn Belt Bank, 164 Ill. 427; Stewart v. Thayer, 170 Mass. 560.