Birkett v. Chatterton , 13 R.I. 299 ( 1881 )

The plaintiff was nonsuited on two grounds, to wit: First, because, according to the testimony, he was not a party to the contract put in evidence, and was therefore not entitled to maintain the action; and, second, because the contract was illegal and void under Gen. Stat. R.I. cap. 155, §§ 21, 22, and 24. We are not convinced that the Court erred in nonsuiting the plaintiff on the first ground. The contract, according to the testimony, was not a contract between the plaintiff and the defendant, but a contract between the plaintiff's father and the defendant, the plaintiff having been when it was made a mere child, eleven years old, living with his father, who boarded and clothed him, scarcely a scintilla of evidence being adduced to show that he was ever emancipated until after the contract was fully performed. Indeed, the father sued at first in his own name on the contract, and it was only after being nonsuited that he brought the present action in the plaintiff's name as his next friend. But admitting that the first point was erroneously decided, we still think that on the second ground the nonsuit was rightly granted. The contract was one which could not be executed without violating the statute, and the plaintiff therefore in suing to recover for having executed it was suing to recover for a violation of the statute. The law of course will not stultify itself by maintaining such an action. The law, however, while it will give no remedy on the illegal contract, does not always utterly refuse relief. It is settled that where a party has paid money or delivered personal property on a contract which is illegal because it involves the violation of a statute, he can recover it back in an action commenced while the contract remains simply executory, the recovery being had not under the contract, which is void, but in disaffirmance of it, on a promise implied or right existing independently of it. Spring Company v.Knowlton, 13 Otto, 49; Chitty on Contracts, 11th Amer. ed. 944. The case at bar does not fall under this rule, for in the case at bar the plaintiff has himself executed the contract. There are cases which go further and hold that money so paid or property so delivered can be recovered back, even after the contract has been fully executed, if the plaintiff is an innocent party, or is notin pari delicto with the defendant. Tracy v. Talmage, 14 N.Y. 162. In this case also the recovery is had not under, but independently of the contract, the contract being treated as a nullity. Can the plaintiff recover on the authority of these latter cases, recovering of course on a quantum meruit, the value of his services? Can he be regarded as an innocent or comparatively innocent and unoffending party? We think not. The cases which support the doctrine last stated are cases where the statutory prohibition is directed solely against the defendant. That is not this case. Here the prohibition is directed, not against particular persons, but against a particular thing, namely, the employment of minors in manufacturing establishments. The language of the statute is, "no minor, c. shall be employed," which means not only that no manufacturer shall employ any minor, but also, what it says, that no minor shall be employed, the employment itself being interdicted. The plaintiff is therefore suing for compensation for having violated the statute, for having done a forbidden thing, which is very different from suing for money or property paid or delivered on a contract, the execution of which does not involve the plaintiff in the violation of any statute, but only the defendant. Thomas v. City of Richmond, 12 Wall. 349, 356. It is argued that the prohibition of the statute cannot have been meant to include minors employed, because such minors are not subjected to any punishment, but only their employers, or their parents and guardians consenting to their employment. The argument would be unanswerable if the prohibition were simply implied from the punishment prescribed. The prohibition is express. Probably the reason why minors employed are not subjected to punishment is because ordinarily they have no will nor choice in the matter. Again it may be said that the statute was designed for the benefit of the minor and ought not to be directed against him. The statute was doubtless intended for the good of the minor, but also for the good of the public; and the legislature seems to have thought that the surest way to make it effectual was not only to punish the more responsible offenders, but also to forbid the obnoxious employment, thus making it amalum prohibition, for engaging in which no action will lie in favor of any person. The law will not help a man get paid for doing what the law says shall not be done. 1 Parsons on Contracts, *456-*459; Broom's Legal Maxims, *729-*745;Peck v. Burr, 10 N.Y. 294; Levy v. Yates, 8 A. E. 129; Gallini v. Laborie, 5 Term Rep. 242.

The exceptions are overruled, and the judgment of the court below affirmed with costs.

Exceptions overruled.