
    *Spurgeon v McElwain.
    Keeping nine-pin alleys in a town, by keeper of public house, being unlawful, builder of such alley can not recover therefor upon a general assumpsit.
    This case was tried in Franklin county, and reserved on a motion for new trial.
    It was a suit in assumpsit on the general counts, and tried on the general issue. It was proved at the trial, that the plaintiff performed work as a carpenter in building a nine-pin alley for the defendant, the keeper of a coffee-house. In defense, it was insisted that as the promise was laid to pay for the work done, to aid in playing a game at a place forbidden by law, the consideration was illegal, and no suit could be sustained to enforce it. The court "thus instructed the jury to correct the alleged error in this, and the plaintiff makes this motion.
    Swan, for plaintiff:
    Does the fact that the plaintiff knew he was contracting to build a house for a nine-pin alley, prevent him from recovering * the price?
    
      The statute, 29 Ohio L. 162, sec. 7, forbids tavern-keepers and retailers of spirituous liquors from establishing, keeping, or permitting to be kept any nine-pin alley, and also forbids such persons from having an interest therein, under a penalty of not less than twenty dollars nor more than one hundred dollars. The prohibition does not extend to the erection of the building any more than the act to prevent playing at billiards forbids the manufacture of broadcloth.
    The establishment or.interest in a nine-pin alley, could not incur the penalty until the thing was completed. Any preparation for the purpose, short of completion, would not subject the tavern-keeper or retailer to the fine imposed by the act. And indeed it may be said there is a locus penitentim after the establishment is complete. Should a nine-pin alley be completed, and its proprietor, instead of suffering it to be used for amusement or gaming, convert it into a ropewalk, he would not forfeit the penalty imposed by the statute. The carpenter should have the full benefit of this opportunity for repentance.
    The cases relied upon by the defendant are not in point. 17 Mass. 258, and 1 M. & Lit. 593. There was a prohibition both upon the buyer and seller. The act itself was unlawful in both.
    *We think the right distinction is made. 5 Taunt. 181; 1 [448 Cond. E. 67. If the contractor is to derive any benefit from the illegal act, he can not enforce a contract concerning it. The cases upon this subject are collected in 3 Stark. Ev. 1632, and none of them go so far as the defendant asks of this court.
    Here a house is built upon supposition the owner may use it for unlawful or prohibited purposes. There is no contract, or obligation, or certainty, however, on his part about his so using it. Ought this supposition to deprive the carpenter of his wages? If. so, the person who furnishes materials or sells the ground would be in the like predicament. If this should be the law, the courts would indirectly inflict penalties, upon those comparatively innocent, vastly more severe than the statute warrants against the principal offender. This would lead to oppression, instead of correcting the morals of the community. The rule is a good one as laid down in the case of Hodgson et al. v. Temple, 5 Taunt. 181. To prevent a recovery, it is necessary that the plaintiff should •share the profits of tho illegal transaction. If this rule should not be adopted, what shall it be? If a mechanic undertakes a house, and is informed the owner contemplates keeping a tavern without license, is it his duty to abandon the contract, and will the law justify that course? Suppose, in the progress of the work, the proprietor suggests that one room is to be appropriated to a billiard-table and another for prostitution, may he abandon his contract with impunity? All will admit the act of finishing such-rooms is, in the abstract, innocent enough; the illegality would consist in the future appropriation. The wretch who contemplates such acts may reform, and the same apartments, originally intended for most nefarious purposes, may be appropriated exclusively to the purest exercises of devotion. The crime must consist in acts, not intents, and can only be reckoned as consummated from the moment of the unlawful use to which the thing is appropriated by the proprietor.
    As the intentions of the owner could not be punished, so, we-suppose, the builder could not or ought not to be punished for knowing such intentions. If an upholsterer sells a bed to an unlicensed tavern-keeper, knowing it to be used for his guests, or to the keeper of a house of ill-fame, knowing it to be used for the ease and comfort of the owners, shall he not be paid for the-article?
    444] *If the court is to establish a rule of general application, I know of none that would answer a better purpose than that he-who is to participate in the profits of an- illegal transaction, as well as when both are forbidden by law to do an act, shall not have the aid of the court to enforce the contract. This rule is not ■too refined for the business of life, and would aid in preserving the-morals of the community. Such a one as the defendant asks-would lead to injustice and oppression.
    Wilcox, for defendant,
    cited 1 Maule & Selwyn, 593; 17 Mass. 258 ; Rall v. Raguet, 4 Ohio, 400.
   Judge Lane

delivered the opinion of the court:

29 Ohio Stat. 162, forbids, under a penalty, any tavern-keeper or retailer from keeping, or permitting to be kept, a nine-pin alley in the building occupied for that purpose; can a carpenter, knowing the object, recover the price of erecting it?

The principle is of general application that contracts contrary to sound morals, public policy, or forbidden by law, will not be executed by courts of justice. Although the rule is plain and definite, difficulties sometimes arise in its practical application. If an improper use be made of goods innocently sold, or if the results of honest labor be devoted to improper purposes, the agent- or the vendee ought not to be visited with the penalty; yet if they intend to assist it in the illegal act, they are parties to its unlawfulness, and deserve no aid from the law.

For the purpose of drawing the line between fraud and innocency, the plaintiff proposes as a test to inquire if the plaintiff derives any benefit from the unlawful use of the goods, or appropriation of the fruits of labor. In our opinion a better rule may be found, more conformable to sound morality, and sufficiently accurate for practical application. If one intend to aid another in an illegal object, he shall not be assisted by the law: as if he sells goods packed in a particular form for the purpose of being smuggled. 1 B. & P. 551. Nor the price of drugs, for the purpose of being illegally used in beer. 1 M. & S. 593. And if knowing the purpose, and having the ability, he do not prevent it, he is deemed to intend it, as in the late case of lodgings let, Abbot held a weekly rent was not recoverable after the landlord knew they were used for prostitution. 21 Comb. 430. And a man is deemed to ^intend the thing he sells or makes shall be ap- [445 propriated to its ordinary use. If that ordinary use be innocent, he is not chargeable with a subsequent misapplication. If a carpenter build a house, he is not to be presumed to do it for bad purposes; or if a blacksmith sell an ax, he is not to be held privy to a blow which may be struck without proof of design. Yet even here, if he intend to build a brothel or to assist in a burglary, he ought not to have the fruits of his labor. And if the ordinary use of the thing produced be illegal, he must be taken as intending the use, and as privy to the illegality, and therefore entitled to no benefit for his labor.

Such is the condition of this plaintiff. He assisted in constructing a nine-pin alley appurtenant to a coffee-house. It is an erection sui generis, whose ordinary use in such a place is unlawful. It was right for the court to charge the jury he could not recover for this work.  