Sullivan v. Hergan

• Citation: 20 A. 232,17 R.I. 109
• Parties: SULLIVAN v. HERGAN.
• Decision Date: 12 July 1890
• Court: Rhode Island Supreme Court

20 A. 232

17 R.I. 109

SULLIVAN

v. HERGAN.

Supreme Court of Rhode Island.

July 12, 1890.

On petition for a new trial.

Patrick J. Galvin, for plaintiff. Francis B. Peckham and William P. Sheffield, Jr., for defendant.

MATTESON, J. This is an action of assumpsit to recover moneys claimed to be due to the plaintiff from the defendant under a contract of hiring. It appears from the evidence reported that the plaintiff was employed by the defendant in his business of a dealer in groceries and liquors, as bar-tender and clerk, from November 27, 1886, until April 19, 1888, and was to receive as wages $18 per month until May 1, 1887, and $25 per month thereafter. At the trial the defendant set up as a defense the illegality of the contract, the sale of liquors being prohibited by law when the contract of hiring was made, and during the period of the plaintiff's employment. The jury returned a verdict for the plaintiff for $187.84. The defendant moves for a new trial, on the ground that the verdict is against the law and the evidence.

The principle that if a contract or promise be founded on a legal and an illegal consideration, and the illegal consideration cannot be separated from the legal, and rejected, the illegality of part vitiates the whole, so that no action can be maintained upon it as a contract, is conceded; but it is suggested that, inasmuch as the contract is Illegal and void, and is therefore, as it is contended, a nullity, the plaintiff is entitled to recover for that portion of his services performed as clerk in the grocery part of the business, upon a Quantum meruit, what such services were reasonably worth, and therefore that the verdict may be supported. We do not, however, agree with the suggestion. Although a contract thus infected with illegality is regarded in law as a nullity, in so far that the law will not lend its aid to enforce it, it is nevertheless not treated as if it had no existence in fact. The illegality extends to every part of the transaction, and it cannot, therefore, be made the foundation of an assumpsit. Both parties are in pari delicto, and the law will, for that reason, not aid either party to enforce the contract, but leaves them where it finds them. It may sometimes happen, in consequence, that a defendant may gain a pecuniary benefit by reason of his wrong-doing, or of that in which he has equally participated; but it is not for the sake of the defendant that his objection to his own illegal contract is sustained. In Holman v. Johnson, Cowp. 341, 343, Lord MANSFIELD remarks: "The objection that a contract is immoral or illegal as between plaintiff and defendant sounds at all times very ill...