24 Haw. 540 | Haw. | 1918
OPINION OF THE COURT BY
This case comes before this court upon a writ of error to review a judgment entered in favor of the defendant in the circuit court. The action was' one in assumpsit for
The case went to trial in the court below before a jury, and both parties having rested the plaintiff moved for a directed verdict for the amount claimed, which motion was denied by the court. Thereupon the defendant moved for a directed verdict upon the ground “that the contract sued upon Avas illegal and Amid as being contrary to public policy, the Avhole contract,” Avhich motion Avas granted and the jury instructed to return a verdict for the defendant.
The defendant was, in the year 1913, and prior thereto, conducting a market in Honolulu. It consisted of a corrugated iron roofed pavilion open on all sides and had a concrete floor. Sewer connections had been made and water pipes laid and connected Avith the existing fixtures in the market. This market was divided into stalls used by the vendors of meat, fish and vegetables. In the month of July, 1913, the unsanitary condition of this market caused the board of health to require the defendant to rectify the same. This it attempted to do by removing a few old fish barrels and other accumulated debris from the premises, which as a sanitary antidote was not a success. Thereafter the defendant employed the plaintiff,
The defendant relies solely upon the illegality of the contract, contending that the entire contract was void as being contrary to public policy.
Ordinance No. 43 of the City and County of Honolulu, entitled “An ordinance establishing rules and regulations for the plumbing and drainage of buildings and the construction of house sewers * * *; providing for the appointment of plumbing inspectors * * * and prescribing their powers and duties,” etc., provides (Sec. 1) that the board of supervisors shall appoint “a suitable person as plumbing inspector * *, who shall not engage
It has long been settled that any contract or agreement entered into by an official, holding a position of the nature held by the plaintiff, with a private individual whereby he undertakes to render services, the performance of Avhich for an outsider he was prohibited from doing, or which might be inimical to the faithful and conscientious discharge of his official duties, is inconsistent and conflicting with his obligation to the public, and is illegal even without being prohibited by statute.
“When a contract belongs to a class which is reprobated by public policy it Avill, as a general rule, be declared void and unenforceable, although in the particular instance no injury to the public may have resulted.” 2 Elliott on Contracts, Sec. 652. And “in determining whether or not a contract is contrary to public policy the contract must be measured by its tendency and not merely by what Avas done to carry it out.” id. Sec. 649. “The courts will unhesitatingly pronounce illegal and Amid, as being contrary to public policy, those contracts entered into by an officer or agent of the public Avhich naturally tend to induce such officer or agent to become remiss in his duty to the public. Nor is it necessary for the officer or agent to bind himself to Auolate his duty to the public in order to bring such an agreement within the operation of the rule. Any agreement by Avhich he places himself or is placed in a position Avhich is inconsistent with his duty to the public and has a tendency to induce him to violate such duties, is clearly illegal and void.” id. Sec. 706. Greenhood, Public Policy, p. 337, states the doctrine thus: “Any contract by one acting in a public capacity, Avhich restricts the free exercise of a discretion vested in him for the public good, is Amid.” In Stropes v. The Board of Commissioners of Greene County, 72 Ind. 42, in which the question involved
Clearly this contract embraced AA-ithin its terms Avork to be done, and duties to be performed by the plaintiff which he was legally and morally disqualified to perform.
But plaintiff contends that the “bad” being separable from the “good,” plaintiff is entitled to recover for the “good.” This is unquestionably the law in many cases of illegal contracts, where there are several distinct and separate items each based upon a separate consideration, or where goods are sold at a separate price for each article, and some of the considerations, or the sale of some of the articles, are illegal.
In this case the services, physical, intellectual and technical, to he rendered by the plaintiff Avere inseverable and indivisible and all having for their sole object the sanitation of the market, and “if any part of a nonseparable contract is void for illegality or reasons of public policy, the taint extends to every part of it, and neither party can enforce any of its provisions against the other.” 6 R. C. L., Sec. 214, p. 215.
The contention of plaintiff that he is entitled to recover
The judgment appealed from is affirmed.