It is a general proposition that an agreement to do an unlawful act cannot be supported at law—that no right of action can spring out of an illegal contract ; and this rule applies not only when the contract is expressly illegal, but whenever it is opposed to public policy, or founded on an immoral consideration-—-the maxim being ex turpi causa non oritur actio. (1 Sel. N. P. 63, 10th ed. Chit. on Cont. 657, ed. 1842.) A court of law will not lend its aid to enforce the performance of a contract which appears to have been entered into by the contracting parties for the express purpose of carrying into effect that which is prohibited by the law of the land. (Holman v. Johnson, Cowp. 341; Jackson v. Duchaise, 3 Tenn. R. 551; Duvergier v. Fellows, 5 Bing. 248.)
The revised statutes provide, that “If two or more persons shall conspire, to commit any act injurious to trade or commerce, they shall be deemed guilty of a misdemeanor.” (2 R. S. 691, § 8.) The object of the agreement made between the parties to the contract, upon which the action in this case is founded, as expressed upon its face, was to establish and maintain fair and uniform rates of freight, and to equalize the business of forwarding on the Erie and Oswego canals, among themselves, and to avoid all unnecessary expenses in doing the same, for a limited period. The parties respectively owned and were then using distinct lines fitted up for carrying
The object of this combination was obviously to destroy competition between the several lines in the business engaged in. It was a conspiracy between the individuals contracting, to prevent a free competition among themselves in the business of transporting merchandize, property and passengers upon the public canals. The question arises, is such a conspiracy to commit such an act “ injurious to trade or commerce,” within the meaning of the statute, and therefore illegal 1 The words trade and commerce are said by Jacobs, in his Law Dictionary, not to be synonymous; that commerce relates to dealings with foreign nations; trade, on the contrary, means mutual traffic among ourselves, or the buying, selling or exchanging of articles between members of the same community. That the raising of the price of freights for the transportation of merchandize or passengers upon our canals is a matter of public concern, and in which the public have a deep interest, does not admit of doubt. It is a familiar maxim, that competition is the life of trade. It follows, that whatever destroys, or even relaxes, competition in trade, is injurious, if not fatal to it. (The People v. Fisher, 14 Wend. 9.) The object of the agreement, as expressed in the written contract, was plausible enough ; but it i.«
Report set aside.