CHAPTER V. LEGALITY OF OBJECT. § 1. Nature of illegality in contract. (i.) Contracts which are made in breach of statute. a. General rules of construction. PANGBORN v. WESTLAKE. 36 IOWA, 546. — 1873. Action to foreclose a mortgage given by Westlake and wife to Pangborn, to secure the payment of a note. The defendant Westlake, by his answer, admitted the due execution of the note and mortgage, and that the same was executed to secure the purchase money of the real estate therein described; and also averred that the sale and conveyance of said real estate made by plaintiff to defendant was illegal and contrary to the statute; that the lots sold were embraced in an addition to Maquoketa, which was laid out and platted prior to the sale, but was neither acknowledged or recorded, or filed for record previous to the sale as required by law. To this answer the plaintiff demurred, because the matters contained therein did not constitute any defense to the action. The demurrer was sustained by the court. The defendant appeals, and here assigns that ruling as error. COLE, J. The single question presented by the demurrer is, whether the contract for the sale of a lot in a town or city, or addition thereto, the plat of which has not been recorded, is void, so that no right of action can be based thereon. enacts (Rev. § 1027): Our statute "That any person or persons who shall dispose of, or offer for sale or lease, for any time, any out or in lots, in any town, or addition to any town or city, or any part thereof, which has been or shall hereafter be laid out, until the plat thereof has been duly acknowledged and recorded, as provided for in chapter 41 of the Code of Iowa, shall forfeit and pay $50 for each and every lot or part of lot sold or disposed of, leased, or offered for sale." There is no doubt that the well-settled general rule is that when a statute prohibits or attaches a penalty to the doing of an act, the act is void and will not be enforced, nor will the law assist one to recover money or property which he has expended in the unlawful execution of it; or, in other words, a penalty implies a prohibition though there are no prohibitory words in the statute, and the prohibition makes the act illegal and void. Bartlett v. Vinor, Carth. 252; Lyon v. Strong, 6 Vt. 219; Robeson v. French, 12 Metc. (Mass.) 24; Gregg v. Wyman, 4 Cush. 322; Pattee v. Greely, 13 Metc. (Mass.) 284; Etna Ins. Co. v. Harvey, 11 Wis. 394; Miller v. Larson, 19 Id. 463; Pike v. King, 16 Iowa, 50, and cases cited; Cope v. Rowlands, 2 Mees. & Welsb. 149, and very numerous other cases there cited. But, notwithstanding this general rule, it must be apparent to every legal mind, that when a statute annexes a penalty for the doing of an act, it does not always imply such a prohibition as will render the act void. Suppose, for instance, the act itself expressly provided that the penalty annexed should not have the effect of rendering the act void. Surely in such case the courts would not give such force to the legal implication, under the general rule above quoted, as to override the express negation of it in the statute itself. Then, upon this conclusion, we are prepared for the next step, which is equally plain, that if it is manifest from the language of the statute, or from its subject matter and the plain intent of it, that the act was not to be made void, but only to punish the person doing it with the penalty prescribed, it is equally clear that the courts would readily construe the statute in accordance with its language and its plain intent. We are, therefore, brought to the true test, which is, that while, as a general rule, a penalty implies a prohibition, yet the courts will always look to the language of the statute, the subject matter of it, the wrong or evil which it seeks to remedy or prevent, and the purpose sought to be accomplished in its enactment; and if, from all these, it is manifest that it was not intended to imply a prohibition or to render the prohibited act void, the courts will so hold, and construe the statute accordingly. The following cases will abundantly vindicate as well as illustrate this statement of the law: Fergusson v. Norman, 5 Bingham's New Cases, 76 (opinion of Tindal, C. J., p. 83); S. C. in 35 E. C. L. Rep. 37 (i.e. 40); Harris v. Runnels, 12 How. (U. S.) 79; Johnson v. Hudson, 11 East, 180; Brown v. Duncan, 10 Barn. & Cress. 93; Hodgson v. Temple, 5 Taunt. 181; Fackler v. Ford et. al., 24 How. (U. S.) 322; The Oneida Bank v. The Ontario Bank, 21 N. Y. 490 (see opinion by Comstock, C. J., on p. 495). We are relieved from the necessity of making an analysis of and construing our statute as an original interpretation of it, because our statute above quoted, like our general municipal incorporations act, was taken from the Ohio statute, and is essentially the same as that. See Swan's Rev. Stat. of Ohio, Derby's edition, 1854, § 10, p. 940. Prior to our adoption of that statute, it had received a judicial construction by the Supreme Court of that State, and it was held that the penalty did not render the contract illegal, so as to prevent a recovery by the vendor of the consideration agreed to be paid by the vendee, for a lot sold him prior to the proper survey and making and recording of the plat. Strong &c. v. Darling, 9 Ohio, 201. And it is a well-settled rule that when the legislature of one State adopts a statute from another which has received judicial construction there, such construction will be presumed to have been known to and approved by the legislature, and will be followed by the courts of the State adopting the statute. See Bemis v. Becker, 1 Kan. 226 (i.e. 249), where the rule was applied to a statute like the one now in question. Under this rule we must hold that the note and mortgage in this case are not illegal and may, therefore, be enforced. There are two cases in Missouri, to which our attention has been called, construing a statute similar to ours: Downing v. Ringer, 7 Mo. 585, and Mason v. Pitt, 21 Id. 391. In the former, and apparently without much investigation, it was held, under the general rule first above stated, that the penalty rendered the contract illegal, and that the vendor of a lot in an unrecorded plat could not, under the Missouri statute, recover from the vendee the consideration agreed to be paid therefor. In the last case it was held, that the failure to record the plat prior to the conveyance, did not prevent the title from passing to the vendee. The Kansas court, in Bemis v. Becker, supra, followed the last, without referring to the former. But, further than this, the question has been, in effect, determined by this court in Watrous & Snouffer v. Blair (32 Iowa, 58), where it was held, that the vendees of certain lots, having, as in this case, actual knowledge that at the time of their purchase the plat had not been recorded, were entitled to a specific performance, by their vendor, of their contract of purchase. Surely, we could hardly be expected to compel a vendor to convey, and then to deny him the right to recover the consideration for such conveyance. In that case we required the conveyance to the vendee; in this, we enforce the payment by the vendee. Affirmed.1 b. Contracts in breach of Sunday statutes. HANDY v. ST. PAUL GLOBE PUBLISHING CO. 41 MINNESOTA, 188.-1889. GILFILLAN, C. J. The action is upon a contract pleaded in the complaint, not in hæc verba, but according to its supposed effect. The answer denied it; and, on the trial, the plaintiff offered in evidence a written contract between the parties, the provisions of which material to this controversy were as follows: The plaintiff, in consideration of being allowed the difference between the rates he might charge for advertising in the various issues of the St. Paul Globe newspaper and the rates thereinafter mentioned, agreed and contracted to take entire charge and control of the real-estate advertising business in the daily and Sunday and weekly Globe, and the defendant agreed, in consideration of such services, to put under his full charge and control all realestate advertising business of defendant in the daily and Sunday and weekly Globe. The plaintiff agreed to pay the defendant 1 See Miller v. Ammon, 145 U. S. 421; Hull v. Ruggles, 56 N. Y. 424. certain specified rates for said real-estate advertising, and the defendant agreed to receive said rates as full payment for all said real-estate advertisements which might appear in the daily, weekly, or Sunday Globe, without regard to the amount plaintiff might charge and receive from advertisers. The contract was to continue for the term of five years, with the option in plaintiff to renew it for another term of five years, or for a shorter time; he to have the right to annul the agreement on giving thirty days' notice of his intention to do so. It was admitted by plaintiff, at the time of making the offer of this contract, that the Sunday Globe referred to in the contract was issued, published, and circulated on Sundays, though set up and printed on Saturdays. The contract was objected to as void upon its face for want of mutuality, and as being against public policy; and it appears to have been argued that it was against public policy because it was an agreement for a violation of the law in regard to Sunday. The court below sustained the objection. The plaintiff, of course, failed in his action, and he appeals from an order denying his motion for a new trial. The same objections are made to the contract here as were made below. The plaintiff contends that, not having pleaded the illegality of the contract, defendant could not assert it on the trial. It is sometimes necessary to plead the facts upon which the illegality of a contract or transaction depends, but it is never necessary to plead the law. When the facts When the facts appear, either upon the pleadings or proofs, either party may insist upon the law applicable to such facts. In this case the plaintiff had, under the pleadings, to prove the contract upon which he sued. If it be void on its face, he, not the defendant, showed its illegality. Though the contract appears in some respects a much more favorable one to the plaintiff than to the defendant, it is not wanting in mutuality of promises and engagements, so as to be without mutual considerations. What the plaintiff is to do appears by implication rather than by express terms. Fairly construed, the contract created the relation of principal and agent between the defendant, as principal, and the plaintiff, as agent, for the management of defendant's real-estate advertising business, that is, in the charge of procuring advertisements for so |