Page:Federal Reporter, 1st Series, Volume 5.djvu/241

 ROBTHWESTEEN MUT. LIFE INS. 00. V. WLhlOTT. 229 �held that the contract was made in the latter state and Ihere- fore valid, because, when the application was approved and the policy deposited in the mail at New York, addressed to the defendant, the contract was then and thereby executed, and became binding on the parties thereto. �An offer by mail to insure certain property, and an accept- ance by letter of the proposition, constitute a valid contract at and from the place and date of mailing such letter of ac- ceptance. Tayloe v. The Merchants' F. Ins. Co. 9 How. 398. �But, admitting that the contract of insurance in this case was made in Oregon and is therefore illegal and void, the plaintiff contends that it is entitled to the relief sought upon the ground that the defendant Jeremiah obtained money from it to which he was not entitled, by means of the false and fraudulent representations ooncerning the death of Moses EUiott. In answer to this proposition the defendant insists that this suit, if not brought directly upon the illegal contract of- insurance, is brought upon an implied one, to the effect that the defendant would retum the money thus obtained from the plaintiff; and that such implied contract arises im- mediately out of and is connected with the original illegal one, and is therefore illegal itself, citing McCausland v. Ral- ston, 12 Nev. 195; McBlair v. Gibbcs, 17 How. 233; Armstrong V. Toler, 11 "Wheat. 258; Dilhn v. Allen, 46 lowa, 299. But it is a mistake to suppose this suit is brought upon a contract actually made or attempted to be made by the parties, and within the purview or operation oE the prohibition of the statute, or at ail. On the contrary, it is a suit brought to recover money obtained by the defendant from the plaintiff, not upon the void contract of insurance, but the fraud of the defendant. True, the plaintiff might at common law, upon the facts, have maintained assumpsit for money had and received by the defendant to the plaintiff's use, and the law, in the interest of justice and by way of promoting the remedy, which was in form ex contractu, would have implied a promise on the part of the defendant to pay. But this would not have been a contract arising out of the void and illegal one, nor in any respect an aflSrmance of its validity, but only an implica- ����