
    King v. King, Exr., et al.
    
      Contract by which one agrees to live with and care for another —And not marry during the service — Consideration that other party will amply provide for servitor — Contract not invalid for restraint of marriage.
    
    1. A contract by wbicb a person agrees to live with and take care of another during his life, and further agrees not to marry during such service, in consideration of the agreement of the other that he will provide for her amply sufficient to make her comfortable and well off, is not necessarily an invalid contract. Although the promise not to marry is in itself a void promise, as against public policy, yet it is but an incident to the main engagement which is for labor and care. And if that service be fully performed, and the recipient fails to perform his engagement during life, the other may maintain an action against his estate on the contract.
    2. In such case the mischiefs likely to ensue to the public by permitting a recovery, notwithstanding the void stipulation, would be less than those likely to follow a holding which would encourage the violation of contracts and the repudiation of just obligations after full value had been received.
    (Decided November 27, 1900.)
    Error to the Circuit Court of Cuyahoga county.
    The plaintiff in error was the plaintiff below. Her action was to recover for personal services rendered in the performance of a contract made with James Howland, in 1881, whereby she agreed to live with him and take care of him during his life. He was a man of means, well advanced in years, without family, living on Euclid avenue in Cleveland, and much of the time in ill health. The plaintiff was a daughter of his niece. She performed the contract on her part, the service extending from the year 1881 to 1896, when Howland died. The contract, as stated in the 'petition, was that “this plaintiff agreed with the said James Howland that she would refrain from marriage-while he should live, and that she would live with him and take care of him while he lived; and he, in consideration thereof, agreed that he would provide for-her amply sufficient to make her comfortable and. well off.” Howland, in his will, left to plaintiff a legacy of five hundred dollars, but, save small amounts of' money given her from time to time, did not perform the contract. A recovery was had in the common pleas. The judgment was reversed by the circuit, court because of error in the charge in instructing the-jury that the contract was a legal one, and if proven to have been made as alleged, and duly performed by plaintiff, there might be a recovery. To reverse this, judgment of reversal this proceeding is prosecuted.
    
      John F. Glark and Geo. L. Phillips, for plaintiff in. error.
    To determine whether a contract falls within any of the legal inhibitions, we must have regard to its general scope and character, and not alone to provisions thereof that are mere incidents of the general engagement.
    This was not an engagement not to marry; it was a. contract for services. The agreement to remain unmarried during the period of service was simply and only to enhance the value of the services, and was a. mere incident of the contract, and therefore does not vitiate the general engagement. Gas Co. v. Dairy Co., 60 Ohio St., 96.
    The object of all law is, to protect legal rights, to-enforce legal obligations, and to promote justice and honest dealing. This object is sought by adherence to great ruling principles. But adherence to settled principles is not a blind adherence. The supreme-concern of the law and its administration is the general welfare, embodied in the law’s ruling maxim, salus populi suprema lex. It is the business of the law and its administration to enforce the performance of contracts. But there are classes of contracts the enforcement of which will not be promotive of the general welfare; and these contracts the courts, following the maxim, that the general welfare is the highest law, refuse to enforce. But this exception has its limitations — limitations promotive of the general principle. When a contract Las been made that falls within an exception, and the court finds the parties in a situation with reference thereto that will make its enforcement more promotive of the general welfare than refusal to enforce, the exception does not apply. Lester v. The Bank, 33 Md„ 558; 1 Sto. Eq. Jur., 298.
    Corporations, like individuals, are bound by their contracts; but, like individuals again, they are not-bound by contracts that are beyond their powers. As a general rule, such contracts are void, and impose no obligation. But a corporation may not avail itself of the defense of ultra vires, where the contract was entered^ into in good faith, and the corporation has had the full benefit of performance by the other party. Hays v. Gas Co., 29 Ohio St., 330.
    If an engagement that is in partial restraint of marriage is against public policy, how much more is it against public policy, that when one party to such •contract has in good faith performed all her covenants, the other should take the benefit of the contract and the performance thereof, and repudiate his covenants, all of which are legal! Burkholder’s Appeal, 105 Pa. St., 31.
    
    
      
      Smith & Blake and Marvin & Shupe, for defendants in error.
    That it was the intention of the parties to the contract to restrain marriage there can be no doubt from the contract itself and from the testimony given by plaintiff’s witnesses, as is shown by the bill of exceptions.
    Contracts which are in restraint of marriage have been uniformly held to be illegal by the authorities, 9 Am. and Eng. Ency. Law, p. 918; Clark on Contracts, p. 443; Hartley v. Rice, 10 East, 22; Sterling v. Sinnickson, 5 N. J. Law (2nd Southard), 756; White v. Benefit Union, 76 Ala., 251; Weeks v. Hill, 38 N. H., 199; 91 Ind., 202; 13 Mo., 211; 94 Ind., 292;, Waters v. Tomwell, 9 Md., 291; Greenhood on Public Policy, in the Law of Contracts, p. 480.
    Courts having been created by law for the purpose of properly administering the same, have invariably held that it was no part of the duty of the court to give aid and assistance to those who sought it in the enforcement of or relief from such contracts, as were' either illegal, immoral, or against public policy. 101 Mass., 363.
    And, the rule that the court will not assist or aid either party to an illegal contract is the same in equity as in law. It is well settled law in Ohio that relief' will not be granted by the court to one whose claim is based upon or grows out of an illegal contract. Roll v.Raguet, 4 Ohio, 400; Thomas v. Cronise, 16 Ohio, 54; Widoe v. Webb, 20 Ohio St., 431; Kahn, Jr., v. Walton, 46 Ohio St., 195; McQuade v. Rosecrans, 36 Ohio St., 442; Ins. Co. v. Hull, 51 Ohio St., 270.
    The rule that courts will not assist the parties whose claim is based upon an illegal contract is not; made for the benefit of a defendant, but on the ground that courts will not lend their aid to assist one who enters into an illegal contract, and will leave the parties where it finds them. In this case, had James Howland paid in advance the price which it is now sought to make his estate pay to the plaintiff, in consideration of the promised performance by plaintiff of the contract to refrain from marriage, and if plaintiff had immediately thereafter violated the terms of said contract and entered into matrimony, James Howland could have had no relief, and could not have recovered the money which he might have paid to induce the performance of such contract.
    The authorities hold that it makes no difference whether or not the contract has been performed on one side. The courts will not grant relief nor place the party in statu quo. Hooker v. De Palos, 28 Ohio St., 251.
    If the courts should establish the rule, as contended for by plaintiff in error, that a contract, though illegal, having been executed on one side, the other party to the contract should be held to perform his part of it, this would be placing a premium on the carrying out of such contracts, and thus encourage the very thing which it is the policy of the law to discourage.
    The rule is' that if the consideration to be paid is single and entire the contract must be held to be entire, although the subject of the contract may consist of several distinct and wholly independent items. 2 Parsons on Contracts, 5th Ed., p. 519; Clark on Contracts, p. 471-473; Laskey v. Bd. of Education, 35 Ohio St., 519.
    We hold that if James Howland, as stated in plaintiff’s petition, “agreed that he would provide for her amply sufficient- to make her comfortable and well oft,” that does not mean that he would will any portion of his estate to her or make her comfortable and well off at or after his death; that the proper inter-, pretation of that contract is, that during his life, while she was living with him as a member of his family, he would provide for her amply sufficient to make her then comfortable and well off, and not at his decease, by will or otherwise. What did he do? This was an uncle living on the most aristocratic and fashionable street in the city of Cleveland. He took ■a niece to live with him who before that time was residing on one of the least desirable streets in the city. During the time she lived with her uncle, as set forth in the answer (some fifteen years), she was provided with a comfortable home, educated and surrounded hy all the opportunities and pleasures that her position on Euclid avenue afforded.
    The rule of law is, that where a near relative goes into a family, lives as one of the family, has the opportunities and privileges of one of the family, no wages or compensation is to be paid by the head of the family, and, hence, we think for the above reasons there is no cause of action set forth in the petition, as found by the circuit court. Lovet v. Price, Wright, 89; Willis v. Dun, Admr., Wright, 133; Hawthorne v. McClure, 4 C. C., 11, 2 Circ Dec., 390; Pollock’s Exr. v. Pollock, 2 C. C., 143, 1 Circ. Dec., 410.
    If this contract was originally void, that is, if it was not legal for her to make such a promise, then the same could not be afterwards ratified and affirmed, nor would the fulfillment of her part of the same permit her to recover the compensation to be received. Hardy v. Publishing Co., 41 Minn., 188; Greenhood on Public Policy in the Law of Contracts, Rule 9, p. 8; Shenk v. Phelps, 6 Illinois App., 12.
   Spear, J.

The sole ground of reversal is that the contract is void, because against public policy, being in restraint of marriage. Hence there could be no recovery. That contracts in restraint of marriage are void, as being contrary to the public policy of the law, is conceded. But the question here is whether the contract to render service, fully performed by the one party, so rests upon the promise not to marry, or is so tainted by that part of the agreement, as to be incapable of enforcement. The consideration moving to the agreement on the part of Howland to make ample provision for his niece was, on its face, twofold: one, the promise to perform the service agreed upon, the other not to marry during the continuance of such service. The first was a valid promise and of itself sufficient to support the promise of the other party; the second was a void promise, not affording any consideration whatever. As given in text books, and numerous decisions, the general rule is that if one of two considerations for a promise be merely void, the other will support the promise, although if one of two considerations be unlawful, the promise of the other party is void; and yet this rule has many exceptions, as will be shown later on. That is, if one of two considerations isvoid merelyfor insufficiency, and not for illegality, the other will support the contract. Widoe v. Webb, 20 Ohio St., 435; MetC, on Con., 246; Chitty on Con., 988; 1 Parsons on Con., 456; Comst. on Con., 24; PiKard v.cottels,Yelv., 56; Bliss v.Negus. 8 Mass., 51; Carleton v. Woods, 28 N. H., 290; Woodruff v. Hinman, 11 Vt., 592; King v. Sears, 2 C.M.&R. 48; Erie Railway Co. v. U. L. & E. Co., 35 N. J. L., 240; Bradburne v. Bradburne, Croke El., 149. This distinction between a contract merely void, and an illegal contract, would seem to be an important one. Courts, as a general proposition, are open for the enforcement of contracts, not for their destruction. So that, where parties have deliberately entered into a contract, valuable to them, and one has received the full advantage of it, the general policy of the law is to exact proper performance by him who has thus obtained the advantage, and some substantial defect should be shown before a court will refuse enforcement; a mere technical objection should not prevail. Now a void contract is one which has no legal force,, and which, for that reason, cannot be enforced; an unlawful contract is one to do an act which the law forbids, or to omit an act which the law enjoins, and for that reason is non-enforceable. There is no provision, either by statute or at common law, which enjoins upon any particular person the duty to marry, nor can anyone be punished for not marrying. To marry, or not to marry, is left to the free choice of all who are eligible to marriage. Hence ■to omit to marry is not illegal, though the promise to omit is one which the law will not enforce. Tt would appear naturally to follow that the only result of making such a promise would simply be that no legal right could be founded on the promise and no remedy afforded for its breach. It is difficult to see any good reason for denouncing such contract as illegal in the sense of violating any law, or of placing parties who may have entered into it outside the pale of the law.

But, aside from this, in the present case the promise on the part of the woman which was of value to the man was the promise to care for him. The promise not to marry was a mere incident to the main purpose, entered into simply because it was supposed that, by remaining single, the woman could the better perform her contract. It was immaterial to the man whether she married or not so long as she fulfilled her promise as to care. In other words, the promise to remain unmarried did not enter into or become part of the substance of the general agreement; that agreement was for the performance of services. If the performance was adequate, and the services rendered in a satisfactory manner, their value could neither be enhanced nor diminished by the fact that they had been rendered by a single woman rather than a married one; so that, had the plaintiff married, yet, if she satisfactorily performed her contract, the recipient of the services would lose nothing by the fact of marriage. As matter of fact she did not marry, whether because of the contract, or for reasons wholly apart from it, is not material, for she was under no obligation to marry nor to refrain from so doing. She did perform the service; that the verdict and judgment of the comlnon pieas settles to all intents and purposes for the present inquiry. As above stated, the promise not to marry, although void because against public policy was not illegal as against positive law, and it is not easy to perceive how its presence in the contract, or its observance by her, or both facts, could place the parties in what is termed in pari delicto, i. e., in a position where the law should adjudge them guilty of its violation, and hence refuse relief for that reason in the face of the fact that the claimant had fully performed.' In such case the maxim in vari de licto melior est conditio possidentis, has, in reason, no application, and we think ought not to have application in law.

Courts refuse to enforce or recognize certain classes of acts because against public policy on the ground that they have a mischievous tendency, and are thus injurious to the interests of the state, apart from illegality or immorality. A contract in restraint of marriage is of this nature. But, as before suggested, it does not follow that all contracts which may have an element of insufficiency, and may be void as to one feature, are incapable of enforcement, pr even that all that are illegal will not be enforced. Decisions are abundant in support of the proposition that even where the acts of the parties have been in violation of positive law the contract may, under some circumstances be enforced. A case in point is Lester v. The Bank, 33 Md., 558. The bank’s charter forbade a director, under penalty of fine and imprisonment, to borrow money from the bank. It was claimed that the act of thus lending by the bank was null and void; that no rights could accrue from it and hence no action could be had by either party based upon it. The court held, however, that: “Contracts made in violation of statute, are not necessarily incapable of enforcement because of their illegality. Whether the courts will enforce them or not, is a question of public policy, and they will be enforced when it may be adjudged that such policy requires their enforcement.” Robinson, J., in the opinion, remarks that: “Public policy, it must be borne in mind, lies at the basis of the law in regard to illegal. contracts, and the rule is adopted not for the benefit of parties but of the public. It is, evident, therefore, that cases may arise, even under contracts of this character, in which the public interests will be better promoted by granting than by denying relief, and in such the general rule must yield to this policy,” and cites 1 Story’s Eq. Jur., sec. 298. This policy of the law finds expression in our statutes authorizing the recovery back of money lost at gaming, and the decisions under them; See also, Burkholder’s Appeal, 105 Penna. St., 31. To justify refusal of relief to the plaintiff, on the ground referred to, the court ought to be ready to hold that the public mischiefs would be greater by permitting a party to recover who had made and performed a contract otherwise well founded but embracing an agreement not to marry while in its performance, than by permitting the other party to have the full benefit of meritorious service for nothing, thus repudiating his agreements, all of which were legal and based upon at least one consideration entirely adequate and wholly lawful. We are not prepared to make such a holding, but are clearly of opinion that no mischiefs to the public would result from sustaining a right to recover in a case like the present comparable to those Avhich would 'follow a contrary holding, one which would encourage the violation of contracts and the repudiation of just obligations after full value had been received.

Other phases of the case are argued by defendants in error. The printed record presented embraces only the question here treated. If is not the duty of the court to hunt through portions of the record not printed in the quest of other reasons why the judgment of the common pleas should have been reversed, and we decline to do so.

The judgment of the circuit court will be reversed and that of the common pleas affirmed.  