is that such a place as the defendant maintained existed in the community, with its evil surroundings and immoral tendencies. What influence was exerted upon the mind of the widow by the mere fact of the existence of such a place to which resort could be had, cannot of course appear except by inference. But if the evidence was not sufficiently strong to authorize the court to hold as a question of law that the parties were not in pari delicto, it at least presented a question of mixed fact and law for the jury.

Our opinion is that the same reasons that have induced courts to declare contracts for the promotion of marriage void, dictate with equal force that they should be set aside and the parties restored to their original position. To decide that money could not be recovered back would be to establish the rules by which the defendant and others of the same ilk could ply their trade and secure themselves in the fruits of their illegal transactions.

We are of the opinion, therefore, that the Common Pleas erred in reversing the order of the City Court, and that a new trial should have been granted.

The order appealed from should be reversed, and the order of the General Term of the City Court affirmed, with costs. All concur. Order reversed.

ENGINEERINC CASES: EXCERPTS FROM DECISIONS.

LEGALITY.

In order to render a contract void because it was made on Sunday, it must have been closed or completed on that day. Foster v. Worten, 67 Miss. 540.

A contract cannot be delivered on Sunday to an agent for delivery on a week-day. Davis v. Barger, 57 Ind. 54.

A sewer contractor was held not liable for negligence for refusing to work on Sunday when by so doing he could have prevented injury to a brick wall. Oleson v. City of Plattsmouth (Neb.), 52 N. W. Rep. 848.

In a contract for services, an agreement by the employee to give his whole time to the work, Sundays and holidays not excepted, is

a valid one; he may be required to work Sundays and may be discharged for not doing so. Nelson v. Pyramid H. P. Co. (Wash.), 30 Pac. Rep. 1096.

A contract made by a person whose property is in danger from a mob to reimburse the sheriff for the wages and subsistence of special deputies is not void as against public policy. McCandless v. Allegheny Bessemer Steel Co. (Pa.), 25 Atl. Rep. 579.

LAWFUL SUBJECT-MATTER.

A promise by owners of a building to rent it at a nominal sum to the government as a postoffice and to use their personal influence to have the postoffice located in that building was held to be illegal and against public policy, and the contract was void. Elkart Co. Lodge v. Crary, 98 Ind. 238 (1884).

It is against public policy for a public officer to agree to accept a larger or smaller fee than is prescribed by law, to delegate his official duty, or to appoint a certain individual as deputy in case he is elected. Deyoe v. Woodworth (N. Y. App.), 24 N. Y. S. 373; Conner v. Canter (Ind. App.), 44 N. E. Rep. 656.

Contracts made with a view to gaining public favor with the government or public officials, such as to pay officers for their influence in procuring contracts for work, or to have a certain bid accepted, are against public policy. Davidson v. Seymour, 1 Bosw. (N. Y.) 88; Bermudez Asph. Pav. Co. v. Critchfield, 62 Ill. App. 221.

While a contract to secure private influence in getting desired legislation is void, a contract to draft a bill, to explain it to legislators and to request its introduction is not void as against public policy. Burney's Heirs v. Ludeling (La.), 16 So. Rep. 507; Chesebrough v. Conover (N. Y. App.), 21 N. Y. S. 566.

No recovery could be had under a contract to grade a street for fill placed outside the street line and on private property, as it was an unlawful act without the consent of the owner. Davies v. E. Saginaw (Mich.) 32 N. W. Rep. 919 (1887).

Where a part of a street improvement encroached on private. property the contractor was not prevented thereby from recovering for work done on the street. Johnson v. Duer (Mo.), 21 S. W. Rep. 800.

Though the contract was void, recovery was allowed a contractor who built a railroad bridge and track outside the railroad company's property, because the company had possession and bene

fit of the structure.

Cunningham v. Massena Springs R. Co.

(Sup.), 18 N. Y. Supp. 600.

Contracts which are in violation of city ordinances are not binding, such as those to erect structures violating the prescribed thickness of walls. Stevens v. Gourley, 7 C. B. N. S. 99.

An agreement between members of trade unions to maintain uniform rates of charges for work and to prevent competition is illegal; one party cannot maintain an action against another who has underbid him. Moore v. Bennett (Ill.), 29 N. E. Rep. 888.

A contract by which one person agrees not to sue another for damages for injuries due to the other's negligence is against public policy and void. Porter v. N. Y. L. E. & W. R. Co., 129 N. Y. 624 (1891).

An agreement between a railroad company and an employee that an officer of the company shall be the sole judge of damages to be assessed for breach of the company's rules is against public policy.

Reference.

CHAPTER III.

THE CONTRACT: PARTIES AFFECTED.

The study of the rules of contract now naturally leads to the parties affected, that is, the persons who have rights and liabilities under the agreement. There are two general rules which apply to this phase of the subject:

(a) Only the parties to the contract can be bound by it or receive benefits under it.

(b) Under some conditions the liabilities and benefits of the contract may be transferred to some person or persons other than the original parties. This may be effected by the parties themselves or by the operation of a rule of law.

The first rule that a person who is not a party to a contract cannot be bound by it, cannot sue or be sued upon it—is one of the fundamental conceptions of the theory of contract. Thus, if A promises B to do some act for C's benefit, C's relations are not affected by the agreement. He was not a party and a breach of the agreement cannot bind him.

SECTION I.

THIRD PARTIES.

1. A person cannot make himself liable on a contract to which he is not a party. To illustrate, a man cannot pay another's debt without his consent and thereby convert himself into a creditor.1

2. The duty to respect the contractual tie rests upon all persons; hence if a man induces one of two contracting parties to break a contract, with the intent to injure the other party or to derive a benefit for himself, that man does the other an actionable wrong.2

1 South Scituate v. Hanover, 9 Gray (Mass.) 420.

2 Angle v. Chicago etc. Ry., 151 U. S. 1, 13-15; Walker v. Cronin, 107 Mass. 555; Bixby v. Dunlap, 56 N. H. 456; Jones v. Stanly, 76 N. C. 355. But some authorities hold that aside from the case of master and servant under the statutes, there is no action for inducing breach of contract unless unlawful means are used, as threats, violence or fraudulent misrepresenta

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(a) English Rule.

A person cannot obtain rights derived from a contract to which he is not a party.

(b) Massachusetts Rule.

The later Massachusetts cases practically adopt the English rule that no action is maintainable by one for whose benefit a promise is made.3

(c) New York Rule.

A third person, X, for whose benefit a promise is made by A, upon a consideration moving from B, the promisee, may maintain an action upon the promise, provided he was the person directly intended to be benefited, and provided the promise was, at the time the promise was given, under an existing obligation or duty to X which he is seeking to discharge by giving X the benefit of A's promise.*

tions, so that the breach is involuntary on the part of the one committing it; and that it is not sufficient to show that the defendant acted maliciously. Bourlier Bros. v. Macauley, 91 Ky. 135; Ashley v. Dixon, 48 N. Y. 430.

3 Exchange v. Rice, 107 Mass. 37; Marston v. Bigelow, 150 Mass. 45; Borden v. Boardman, 157 Mass. 410. So also Michigan. Linneman v.

Boross, 98 Mich. 178.

4 Lawrence v. Fox, 20 N. Y. 268; Vrooman v. Turner, 69 N. Y. 280. This rule with the first limitation has been generally adopted throughout the United States. It is almost universally held that if the benefit is only incidental the third person cannot maintain an action. Burton v. Larkin, 36 Kan. 246; Howsmon v. Trenton Water Co., 119 Mo. 304; National Bank v. Grand Lodge, 98 U. S. 123. Perhaps the only case to the contrary is Paducah Lumber Co. v. Paducah Water Supply Co., 89 Ky. 340. The second limitation has also been expressly approved. Jefferson v. Asch, 53 Minn. 446. But many cases state the rule in the broadest possible terms without reference to this limitation. Grant v. Diebold Safe & Lock Co., 77 Wis. 72; Hendrick v. Lindsay, 93 U. S. 143, 149. It is believed, however, that with few exceptions the decided cases which apply the rule apply it to the facts well within the second limitation. The following are illustrative of its application: a promise by A to pay B's creditor (X) in place of paying B himself, Lawrence v. Fox, supra; Wood v. Moriarty, 15 R. I. 518; a promise by an incoming partner (A) to pay the creditors (X, Y, etc.) of the firm of which the promisee (B) is an outgoing partner; Lehow v. Simonton, 3 Colo. 346; Claflin v. Ostrom, 54 N. Y. 581; Shamp v. Meyer, 20 Neb. 223; a promise by a purchaser or grantee of property to pay a mortgage or lien against the property for which the seller or grantor was personally liable; Burr v. Beers, 24 N. Y. 178; Thorp v. Keokuk Coal Co., 48 N. Y. 253; Hallenbeck v. Kindred, 109 N. Y. 620; Dean v. Walker, 107 Ill. 540; but not where the grantor was not personally liable: