Norfolk & Western Railway Co. v. F. Dehart Distilling Co.

Sims, J., after making the foregoing statement, delivered the following opinion of the court: [1, 2] As held in Brewing Co. v. Southern Express Co., 109 Va. 22, 63 S. E, 6, under the statute (Acts 1908, pp. 275, 281-2), which was in force when the cause of action in the case in judgment arose, it was then unlawful for common carriers to transport “large quantities of liquor into no-license territory.” Therefore, the contract of carriage in the case in judgment was an illegal contract, being one forbidden by law. [3, 4] It is true that the defense of illegality of a contract interposed by one of the parties' to it for the purpose of escaping its obligation, is not one favored in the law; the maxim “home (Megans suam turpitudinem audiendus est,” makes a strong appeal in a court of justice; and there are many situations in which the courts will either not consider the particular contract as necessarily illegal or will regard the parties as in pari delicto and will not lend an ear to either of them. But, as stated in 2 Elliott on Contracts, sec. 1064: “It is a well settled principle of law that the courts will not aid a party to enforce an agreement made in furtherance of objects forbidden by the statute * * or to recover damages for its breach * And where the transportation which is the subject of the contract is forbidden by the statute, there is no other course left open for the court to pursue except to deny aid to either party to such a contract to recover damages for its breach.' See also authorities cited in Levy v. Davis, 115 Va. 814, 80 S. E. 791. [5] The judgment under review must, therefore, be reversed, and, under our present statute (Code 1919, sec. 6365), the case will be dismissed. Reversed and dismissed.