Day v. McAllister

81 Mass. 433 | Mass. | 1860

Hoab, J.

The contract upon which the plaintiff declares, being an illegal contract, expressly prohibited by statute, will not support an action. Bayley v. Taber, 5 Mass. 286. Pattee v. Greely, 13 Met. 284. Merriam v. Stearns, 10 Cush. 257. It has no legal force or obligation. No repudiation by a formal act was requisite to render it inoperative. It had no partial validity, such as would make it capable of subsequent completion. The statute which prohibited it was not designed merely for the protection of the defendant, giving him a personal privilege which he might waive; but rested upon grounds of broad public policy. The defendant could not ratify the illegal contract, because its want of validity did not depend in any degree upon his choice. The law annulled it, and there was no subject of ratification. He might make a new one; but any arrangement or agreement between the parties on any subsequent day, whether direct and express, or implied from their dealings with each other’s property, would be a new and independent transaction. It is not quite accurate to speak of the “ratification” by a party of something which the law forbids, and which is made void, not from any want of his full consent, but in spite of it. 20 Amer. Jurist, 255. The distinction is clearly regarded in Williams v. Paul, 6 Bing. 653 and in the decision of the recent case of Stebbins v. Peck, 8 Gray, 553. In the latter case the word “ ratification ” is used, it is true, but it is in connection with the word “ adoption,” and was not intended, as the context shows, to give any countenance to the idea that the contract could be made valid ab initia by any subsequent agreement between the parties.

This action is upon the note, the original illegal contract, and it cannot be maintained. Exceptions overruled.