
    Morse v. Maurer, Appellant.
    
      Contracts — Performance—Illegal contract — Elevator.
    Where a contractor for building an elevator has fully performed the contract according to its terms, the purchaser cannot object to payment therefor, because the work as finished did not meet the approval of the public authorities, and, as a whole, was in violation of law.
    In such a case the fact that it will be necessary for the purchaser to expend some additional money in making the shaft or inclosed part of the elevator conform to the requirements of the building laws has nothing to do with the contractor’s right to recover for the work which he had done.
    Argued Oct. 9, 1907.
    Appeal, No. 60, Oct. T., 1907, by defendant, from order of C. P. No. 2, Phila. Co., Dec. T., 1906, No. 2,939, making absolute rule for judgment for want o’f a sufficient affidavit of defense in case of Morse, Williams & Co. v. D. Maurer & Son Co.
    Before Rice, P. J., Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Assumpsit for price of a freight elevator.
    The defendant filed an affidavit of defense, the material portions of which were as follows:
    That during the summer and early fall of the year 1906, the defendant was erecting and constructing for its own occupancy an entirely new factory building, three stories high, at No. 331 North Eighth street, in the city of Philadelphia. That for the purpose of its business it desired to have placed in the said building a freight elevator, and for that purpose invited proposals from various concerns in that line of business, among others the plaintiff corporation; that in due course, to wit: on or about September 14, 1906, the plaintiff submitted proposals to place such elevator, which proposal was accepted by the defendant, béing the proposal and acceptance referred to in the statement of claim, and on which this action is brought. That thereupon, the plaintiff, knowing from personal inspection, that the building was entirely new, on October 1, 1906, applied to the bureau of building inspection of the city of Philadelphia for and was granted a permit to place an elevator, not in a new, but in an “old hatch;” that this application was a fraud and in violation of the acts of assembly, particularly the Act of April 25,1903, P. L. 304, etc., for the reasons hereinafter set forth.
    That thereupon the plaintiff proceeded to place the said elevator in the building aforesaid, and when finished was on November 20, 1906, inspected and condemned by the bureau of building inspection as an illegal and dangerous elevator, in that being a new and not an old shaft in a factory building, it was required by the fourth section of the act hereinbefore referred to, to be inclosed between the floor and ceilings of each story in suitable walls of brick, or with a suitable framework of iron or burnt clay filling, or of such other fireproof material and form of construction as may be approved by the bureau of building inspection, excepting that the inclosure walls, required by said section in any fireproof buildings used as warehouses or factories shall be of brick; and the said building No. 331 North Eighth street was a building of such a character. That the elevator shaft in the said building was not inclosed as required by the act as above set forth, nor inclosed in any way, but that hatch openings were provided with automatic hatch doors only. That the said act of assembly permitted the latter construction only in buildings existing at the time of its passage, and it was to obtain the benefit of such-permission that the plaintiff at the time it made application for and received a permit as set forth in the “First” paragraph of this affidavit, fraudulently misrepresented to the bureau of building inspection that the hatch was an old one.
    That by reason of the condemnation by the bureau of building inspection aforesaid, the defendant will be put to an expense of $160, and perhaps more, to have the shaft and openings reconstructed and the shaft inclosed to make it conform to law, as it was the duty of the plaintiff to do.
    That the deponent is advised and informed, and therefore avers, that the plaintiff having deceived the bureau of building inspection, and having erected a contrivance that was contrary to law, it is not entitled to recover anything in this action.
    
      February 28, 1908:
    The court made absolute rule for judgment for want of a sufficient affidavit of defense.
    
      Error assigned was the order of the court.
    
      Frederick J. Knaus, for appellants.
    — There can be no recovery upon a contract based upon a violation of law: Mitchell v. Smith, 1 Binney, 110; Booth v. Hodson, 6 T. R. 405; Seidenbender v. Charles, 4 S. & R. 151; Swan v. Scott, 11 S. & R. 155; Holt v. Green, 73 Pa. 198.
    
      Harry E. Kohn, for appellee.
   Opinion by

Orlady, J.,

The plaintiffs, who were engaged in the construction and erection of elevators for buildings, submitted a written proposal to the defendant, dated September 14, 1906, containing specifications for an elevator to be installed in the defendant’s property, according to the description therein given, for the price of $425, payable on completion. The court below made absolute a rule for judgment, for want of a sufficient affidavit of defense, and the defendant’s contention is, that because the work as finished by the plaintiffs did not meet the approval of the public authorities, and that, because, the work as a whole was in violation of law, the plaintiff could not recover under his contract, under the authority of Swan v. Scott, 11 S. & R. 155; Holt v. Green, 73 Pa. 198; Johnson v. Hulings, 103 Pa. 498, and others which hold that courts will not lend their aid to the enforcement of an unlawful contract.

This position is untenable in the light of the record as presented to us. The written offer as made by the plaintiffs and accepted by the defendant embraced only such a construction and such appliances as are therein specifically described, and this is all for which the plaintiffs claim it is entitled to recover. The contract as made was a perfectly lawful one. Its full performance, according to the terms of the written offer, is undisputed. The fact that it will be necessary for the defendant to expend some additional money in making the shaft or inclosed part of ■ the elevator conform to the requirements of the building laws of the commonwealth has nothing to do with the plaintiff’s right to recover for the work that has been done. The defendant got precisely that for which he contracted, and if his contract was not broad enough to meet the exigencies of his business, or the requirements of the law, the plaintiff should not be penalized by the defendant’s omission to provide for the additional work. The machinery necessary to operate the elevator, with its timbered supports, might well be considered an entirely separate and independent matter of contract from building the surrounding walls; and was evidently so considered by the defendant, in that he did not combine the two elements in its construction.

The judgment is affirmed.  