13 Zipcey . Thompson, 1 Gray, 243.87, 91

CONTRACTUAL LIMITATIONS.

CHAPTER I.

LIMITATIONS UPON THE RIGHT TO CONTRACT.

1. Duty to Avoid Invading Interests Cherished by the Law. $2. What are Contracts which Invade such Interests.

a. Consideration Essential, Illegal in Part, Moral and Immoral.

b. Good and Equitable Consideration.

c. Mutual Promises.

d. Valuable Consideration.

e. Expectation of Results, not a Consideration.

f. Voluntary Service or Promise; Existing Obligations.

g. Wager Policies on Life.

h. Future Delivery of Stocks, Grain, and Produce. $3. Courts, in Matter of Contract, will Protect the Public.

$1. Duty to Avoid Invading Interests Cherished by the Law. While at common law the right of everyone, not belonging to a class specially disqualified—as infants, married women, or lunatics-to enter into a contract upon a sufficient consideration, is recognized, yet all persons are forbidden to enter into any contract which is contrary to "the policy of the law" or the welfare. of the State. This is giving practical effect to the rule that everyone in exercising a right must have regard to the effect of such exercise upon his neighbor. But while the rule in torts is only held to require that a man must see that his neighbor does not suffer from his negligent exercise of his right (Ray, Neg. Pers. 8), in the matter of contracts, it declares that the right to make them does not include the right to enter into any engagement which contemplates injury to the rights of another.' An agreement to 'Bartle v. Nutt, 29 U. S. 4 Pet. 184, 7 L. ed. 825; Gordon v. Howden, 12 Clark & F. 237.

accomplish a purpose in itself not unlawful, by means of a violation of a contract with a third party, or a fraud upon him, or a breach of trust, or a trespass against his person or property, is illegal.'

So, also, all contracts invading any one of the interests which the law cherishes, though not indictable and not prohibited by statute, are against public policy and void.'

The common law will not permit individuals to legally place themselves in a position by contract where they are required either to do or not to do a particular thing, when the thing to be done or omitted is in any degree injurious to the public.'

A trade-mark liable to deceive the public will not be a protection to its owner; or one discriminating between union and nonunion labor."

So a contract to pay an unlicensed physician for his services as a physician, when a statute prohibits him from practicing, is void Woodruff v. Wentworth, 133 Mass. 309; Guernsey v. Cook, 120 Mass. 501; Rice v. Wood, 113 Mass. 133; Fuller v. Dame, 18 Pick. 472; Spaulding v. Preston, 21 Vt. 9; Foote v. Emerson, 10 Vt. 338; Oscanyon v. Winchester Arms Co. 103 U. S. 261, 26 L. ed. 539; Forbes v. McDonald, 54 Cal. 98; Jackson v. Ludeling, 88 U. S. 21 Wall. 616, 22 L. ed. 492; Noel v. Drake, 28 Kan. 265; Nichols v. Ruggles, 3 Day, 145; Reg. v. Rowlands, 17 Q. B. 671; Reg. v. Warburton, L. R. 1 C. C. 274; Reg. v. Aspinall, L. R. 2Q. B. Div. 57; Poplett v. Stockdale, 1 Ryan & M. 337; Shep. Touch. 370. Oscanyon v. Winchester Arms Co. 103 U. S. 261, 26 L. ed. 539; Fuller v. Dame, 18 Pick. 472; Bestor v. Wathen, 60 Ill. 138; Ayer v. Hutchins, 4 Mass. 372; Liness v. Hesing, 44 Ill. 113; Hamilton v. Scull, 26 Mo. 165; Fenton v. Ham, 35 Mo. 409; Harwood v. Knapper, 50 Mo. 456; Church v. Muir, 33 N. J. L. 318; Bradford v. Beyer, 17 Ohio St. 388; Norris v. Norris, 9 Dana, 318; Kribben v. Haycraft, 26 Mo. 396; Wright v. Rindskopf, 43 Wis. 348.

West Virginia Transp. Co. v. Ohio River Pipe Line Co., 22 W. Va. 617; Western U. Teleg. Co. v. American U. Teleg. Co. 65 Ga. 160; Hazlehurst v. Savannah, G. & N. A. R. Co. 43 Ga. 13; Raymond v. Leavitt, 46 Mich. 447; Colles v. Trow City D. Co. 11 Hun, 397; Watson v. Harlem & N. Y. Nav. Co. 52 How. Pr. 348; Faulds v. Yates, 57 Ill. 416; Falls' App., 91 Pa. 534.

Manhattan Medicine Co. v. Wood, 108 U. S. 218, 27 L. ed. 706; Palmer v. Harris, 60 Pa. 156; Connell v. Reed, 128 Mass. 477; Buckland v. Rice, 40 Ohio St. 526; Siegert v. Abbott, 61 Md. 276; Cleveland, C. C. & I. R. Co. v. Closser, 9 L. R. A. 754, 126 Ind. 348; Kirkpatrick v. Clark, 8 L. R. A. 511, 132 Ill. 342.

Mc Vey v. Brendel, 13 L. R. A. 377. See, on subject of trade-marks, New York & R. Cement Co. v. Coplay Cement Co. 10 L. R. A. 833, 44 Fed. Rep. 277; Alff v. Radam, 9 L. R. A. 145, 77 Tex. 530; Weener v. Brayton, 8 L. R. A. 640, 152 Mass. 101; Gato v. El Modelo Cigar Mfg. Co. 6 L. R. A. 823, 25 Fla. 886; Laughman v. Piper, 5 L. R. A. 599, 128 Pa. 1; Cigar Makers Prot. Union v. Conhaim, 3 L. R. A. 125, 40 Minn. 243; Rumford Chemical Works v. Muth, 1 L. R. A. 44, 35 Fed. Rep. 524; and notes to the cases.

in its inception, as imperiling the public health.' A contract by which a telephone company agrees to give a telegraph company the exclusive use for a term of years of the telephone for receiving and transmiting telegraph messages is void as limiting public use, and therefore against public policy. A man's contract to give another the first right to purchase the interest of his deceased wife's estate in school lands, as soon as administration is had upon the estate, is contrary to public policy and void, where he had no power to bind the estate."

Where property of large value, both real and personal, is incumbered with mortgages or other liens to an amount something like its value, so that there remains in the owner but an equity of redemption of trifling value; and a creditor at execution sale, or otherwise, buys at a small price such equity, with a view to redemption from the liens, a court of equity will lend its aid to put him in a position where he may safely redeem; but where such purchase is purely speculative, simply in fact to trade upon the chances of successfully attacking transfers of large property, made for the benefit of creditors, and with the view of depriving them of the benefits of such transfers, it is a case where equity, true to its ideas of substantial justice, refuses to be bound by the letter of legal procedure, or to lend its aid to a mere speculative purchase which threatens injury and ruin to a large body of honest creditors, who have trusted for the payment of their debts to the legal validity of proceedings theretofore taken.*

Nothing can call a court of equity into activity but conscience and good faith toward the public and individuals, and reasonable diligence. Where these are wanting, the court is passive, and does nothing.'

1Pucket v. Alexander, 3 L. R. A. 43, 102 N. C. 95; Gardner v. Tatum, 81 Cal. 370.

State v. Delaware & A. Teleg. & Teleph. Co. 47 Fed. Rep. 633. 3Specht v. Collins, - Tex.

16 S. W. Rep. 934.

Jencks v. Quidnick Co. 130 U. S. 457, 34 L. ed. 200. See Townshend v. Goodfellow, 3 L. R. A. 739, 40 Minn. 312.

Brown v. Buena Vista County, 95 U. S. 157, 160, 24 L. ed. 422; Speidel v. Henrici, 120 U. 8. 377-387, 30 L. ed. 718-720; Aldridge v. Muirhead, 101 U. S. 397, 25 L. ed. 1013; Muirhead v. Aldridge, 14 Nat. Bankr. Reg. 249; Codman v. Rogers, 10 Pick. 112; Angell, Lim. (6th ed.) § 96; Buswell, Lim. & Adv. Poss. § 159; Wood, Lim. § 118; Sebring v. Sebring, 43 N. J. Eq. 59; Pom. Eq. Jur. §§ 418, 419.

If a contract be unreasonable and unconscionable, but not void for fraud, a court of law will give to the party who sues for its breach damages, not according to its letter, but only such as he is equitably entitled to;' for one who has been led into a contract upon which he has received something of value cannot ignore the contract, however induced, and proceed as if the relations of the parties were wholly unaffected thereby, and cannot while retaining its benefits and thus affirming the contract, treat it as though it did not exist."

One kind of unfairness which stays the interference of the court arises where the enforcement of the contract would be injurious to third parties."

A contract obtained under circumstances which are not fair and honest cannot be enforced in equity.*

Thus, where an illiterate man signs a writing which has been falsely read to him, he cannot be compelled to execute it."

A sale will be set aside at the petition of a vendor not guilty of laches under the circumstances in which he acted, who has been induced to sell, at an inadequate price, property at a great distance from his residence, and of the value of which he was ignorant, by the false representations as to such value of a purchaser who has secured his trust and confidence for this purpose and who is fully informed as to such value and acquainted with the property, but does not disclose the facts respecting it.

Nor can there be any contract enforceable in a court, where a physical act of concurrence therein has been coerced through duress or imprisonment; and a threat followed by fear of its execu

Hume v. United States, 132 U. S. 406, 32 L. ed. 393.

Home Ins. Co. v. Mc Richards, 121 Ind. 121; Hume v. United States, 132 U. S. 406, 33 L. ed. 393.

3Fry, Specific Perf. § 245.

Foley v. Greene, 1 New Eng. Rep. 17, 14 R. I. 618; Kelly v. Kendall, 6 West. Rep. 544, 118 Ill. 650; Fry, Specific Perf. § 241; Dement v. Bonham, 26 Ill. 158; Mitchell v. King, 77 Ill. 466; Tamm v. Lavalle, 92 Ill. 263; Kelley v. Sheldon, 8 Wis. 258; Miner v. Medbury, 6 Wis. 295; Smith v. Mariner, 5 Wis. 551; Reed v. Jones, 8 Wis. 392; Wells v. Millet, 23 Wis. 64; McClellan v. Scott, 24 Wis. 81; Mortlock v. Buller, 10 Ves. Jr. 292; Stone v. Pratt, 25 Ill. 25.

Green v. North Buffalo Twp. 56 Pa. 110; Schuylkill County v. Copley, 67 Pa. 386. This is also the doctrine of Thoroughgood's Case.