
    13042.
    Rittenbaum v. Cohen et al.
    
    Decided September 23, 1922.
    Complaint; from Fulton superior court — Judge Pendleton. October 20, 1921.
    
      Loviclc G. Fortson, for plaintiff.
    Howard, Weltner, Cheatham & Eoplin, for defendant.
   Stephens, J.

A contract whereby it is agreed that one of the parties thereto shall refrain from making a bid for property to be sold by the United States government at public auction and that all the parties thereto shall share in the profits arising from a resale of the property thus purchased, and which contract is not the result of a bona fide co-operation on the part of the parties thereto to render a service which neither could alone perform or which could be better performed for the benefit of the government by the co-operation of the parties to the contract, is void as against public policy.

2. “ Where either party has to rely upon a contract which is in fact illegal, the other party may in avoidance thereof show its illegality.” Clark v. Brown, 77 Ga. 609 (4 Am. St. R. 98).

3. This being a suit wherein it is alleged that in response to a certain advertisement by the United States government offering for sale at public auction certain scrap iron the plaintiff and the defendants, while independently inspecting the property to be sold before the day of the sale, entered into an agreement whereby only one of the parties to the agreement should make a bid and that the other parties thereto would refrain from making bids, and that all of the parties to the agreement should share in the profits resulting from a resale of the property, and where it is alleged that on the day of the sale, one of the defendants made the successful bid and resold at a profit but refused to share such profits with plaintiff, and judgment being prayed in an amount equal to the plaintiff’s share of the profits under the

. terms of the alleged agreement, the judge did not err under the above rulings in sustaining the defendant’s demurrer and dismissing the petition. Judgment affirmed.

Jenkins, P. J., and Bell. J., conewr.  