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What are known as “corners” in the market are clearly illegal. Moreover, a combination to create a corner in a necessary of life is not only illegal but also criminal.
It has been held illegal for workmen to combine to enhance the price of their labor. Thus, it is said in an Illinois case: 1
All of the members of the association are engaged in the same business within the same territory, and the object of the association is purely and simply to silence and stifle all competition as between its members. No equitable reason for such restraint exists, the only reason put forward being that, under the influence of competition as it existed prior to the organization of the association, prices for stenographic work had been reduced too far, and the association was organized for the purpose of putting an end to all competition, at least as between those who could be induced to become members. True, the restraint is not so far reaching as it would have been if all the stenographers in the city had joined the association, but, so far as it goes, it is precisely of the same character, produces the same results, and is subject to the same legal objection.
It is to be observed, however, that by the weight of authority combinations of workmen to control the price of their labor or skill are not necessarily illegal. If the means contemplated and the object sought are not unlawful such combinations are generally held valid. On this question, Greenhood says: 2
Combinations of artisans for their common benefit, as for the development of skill in their trade, or to prevent overcrowding therein, or to encourage those belonging to their trade to enter their fold, or for the purpose of raising the 1 Moore v. Bennett, 140 Ill. 69, 29 N. E. R. 888, 33 Am. St. Rep. 216. 2 Greenhood on Public Policy, rule 546.
prices of labor, are valid, provided no force or other unlawful means be employed to carry out their ends, or their object be not to impoverish third persons, or to extort money from employers, or to encourage strikes or breaches of contract, or to restrict the freedom of members for the purpose of compelling employers to conform to their rules.
99. Contracts made on Sunday.--At common law, contracts made on Sunday are as valid as if made on some other day. By statute, however, both in England and in this country, such contracts are generally made illegal. The various statutes upon this subject, however, are not harmonious. Some expressly declare such contracts void, while others prohibit all secular business, and there are some that prohibit business or labor even in a man's ordinary calling. A contract made on Sunday may not be illegal, but one to be performed on Sunday is illegal."
In all of the states contracts made respecting works of charity or necessity are valid, but in their definition of a work of necessity or charity the decisions are not harmonious. The general rule is, that anything which must be done to save life or to preserve health or property, and which must be done on Sunday or not at all, is a work of necessity. So also is any act the object of which is to relieve distress or suffering, or which relates to religious worship, an act of charity. The word “necessity” does not imply an absolute necessity, but rather "a moral fitness or propriety of the work and labor done, under the circumstances of any particular case.” Thus, the following have been held acts of necessity: repairing railroad tracks and public highways; transporting live stock by a common carrier; shoeing horses used in carrying mail; sending a call to a physician by telegram; loading a ship where navigation is in danger of closing. On the other hand, the following have been held not to be acts of necessity: shaving and cutting hair by a barber; selling meat by a butcher; giving a promissory note to secure the discharge of a prisoner.
1 In New York a contract is not void because made on Sunday. A deed, check, etc., is perfectly good if dated and delivered on that date. Only public sports, servile labor, manufactures, public sales of goods are prohibited. Penal Code, 259–277.
Church subscriptions made on Sunday have been held enforcible. And promissory notes, deeds and mortgages, which are signed on Sunday, but not delivered until a secular day, are valid. Yet those signed on a secular day and delivered on Sunday are void, except in the case of negotiable instruments in the hands of a bona fide purchaser for value.
100. Contracts in derogation of marriage.-Contracts which are in derogation of the marriage relation are generally held to be against public policy and therefore void. However, restraint, to render them void, must be unreasonable. A contract never to marry at all, or never to marry anyone but a particular person, is void. Where one person bets another that he will not marry within a certain time, say one year, the wager is void even at common law. On the other hand, a contract not to marry without the consent of parents, or until of age, is valid, because the restraint is not considered an unreasonable one.
Marriage brokerage contracts are against public policy and for this reason void. Such contracts tend to restrain freedom of choice in entering into the marriage relation. A marriage brokerage contract is one in which one party promises to procure or bring about a marriage between the promisee and a third party. The promise in such a case is void even when the promisee and third party are already engaged."
101. Contracts of an immoral nature.—Contracts which are in violation of established rules of morality are against public policy and void. Thus, a promise given in consideration of unlawful cohabitation or intercourse, either present or future, is void. The same rule obtains where the consideration is past, except when the promise is under seal.
102. Contracts in fraud of third parties.—Contracts which have a direct tendency to induce a party to commit a breach of trust or to defraud a third party are illegal and void. On this point Greenhood says: 2
Contracts which are opposed to open, upright, and fair dealings, are opposed to public policy. A contract by which one is placed under a direct inducement to violate the confidence reposed in him by another is of this character. .. . The law will not only avoid contracts, the avowed purpose or express object of which is to do an unlawful act, but those made with a view to place, or the necessary effect of which is to place, a person under wrong influences, and offer him a temptation which may injuriously affect the rights of third persons.
103. Contracts against liability for negligence.-A stipulation in a contract with a common carrier (either of goods or passengers) exempting it from liability for damages caused by its agents' or servants' negligence is against public policy and void. A stipulation in a contract between a common carrier and its employés that the former shall not be liable to the latter for injuries to them caused by the negligence of other employés who are superior in authority and control over them is also against public policy and void. This is stated in an Ohio case: 1 "Such liability is not created for the protection of the employés simply, but has its reason and foundation in a public necessity and policy, which should not be asked to yield or surrender to mere private interests and agreements.”
1 Morrison v. Rogers, 115 Cal. 252, 46 Pac. Rep. 1072, 56 Am. St. Rep. 95.
In New York the courts will grant restitution of money paid, or of property transferred to the broker. Duval v. Wellman, 124 N. Y. 156; Place v. Conklin, 34 App. Div. 191.
2 Greenhood, Public Policy, 294.
104. Effect of illegality. The effect of an illegal stipulation in a contract depends upon circumstances. Thus, in a contract which consists of a single promise supported by a single consideration if either is illegal the contract is void. But in a contract which consists of several promises or considerations, some of which are legal and some illegal, the contract may or may not be wholly void. If a division can be made whereby one or more legal promises are supported by one or more legal considerations, and the illegal part can be eliminated, the legal part will be enforcible. This view is held by Kent: 2 "If the part which is good depends upon that which is bad, the whole is void; and so I take the rule to be if any part of the consideration be malum in se, or the good and void consideration be so mixed, or the contract so entire, that there can be no apportionment.” And as said in a Massachusetts case: 3 “If any part of an agreement is valid, it will avail pro tanto, though another part of it be prohibited by statute; provided the statute does not, either expressly or by necessary implication, render the whole void; and provided furthermore, that the sound part can be separated from
1 Lake Shore & M. S. Ry. Co. v. Spangler, 44 Ohio St. 471, 8 N. E. R. 467, 50 Am. Rep. 833.
22 Kent. Comm. 467.