Page:Harvard Law Review Volume 9.djvu/313

285 RECENT CASES. 285 Contracts — Accord and Satisfactiox — Executory Accord not en-- FORCEAKLE. — Plaintiff and defendant made a contract for the delivery of lumber on May 20, 1889. After partial execution disputes arose, and on December 30 a new contract was made modifying the old one, but it was not executed. Plaintiff sued on old contract. Held, that new contract was an accord that did not discharge the old one until per ormance. Crow v. Kimball Lttmher Co., 69 Fed. Rep. 61. Whether one contract can be discharged by the substitution of another is said to depend on whether the parties intend the new agreement or its performan e to be the consideration for the release of rights under the old one. This is no doubt true, but vhen the new agreement, as in the present case, offers no reliable clue to the intent of the parties, which will they be presumed to intend ? W hen the second contract contains mutual promises to do acts other than merely forbearing to exercise rights given by the old contract, it would seem that the presumption should be in favor of an intent to substitute the new agreement, not its performance, for the old one. Clearly both contracts are not meant to be carried out, and by the new one both parties have promised to do acts inconsistent with the old one. It is therefore hardly reasonable to suppose they mean to w it till performance on either side before abandoning the old contract. Where only one party makes a new promise, and the other merely agrees to forbear, it may be reasonable to suppose that the execution of the promise, not its giving, is the consideration. Compare Babcock v. Hawkins, 23 Vt. 561 ; More/iouse v. Bank,g^ N. Y. 503 ; Christie v. Craige, 20 Pa. Sr. 430. Contracts — Defence of Illegality. — Plaintiff declared on defendant's mort- gage note. Defendant pleaded that plaintiff, in loaning the money held by him as county treasurer — the consideration for defendant's note — committed the crime of embezzlement under R. S. Indiana, 1894, § 2019. Plaintiff demurred. Held, overruling plaintiff's demurrer, ( i ) the record does not disclose any interest of the county in this action ; ( 2 ) plaintiff having committed a crime in giving the consideration, is thereby precluded from recovering for his own benefit. Winchester Light Co. v. Veal, 41 N. E. Rep. 334 (Ind. ). It is a well recognized legal principle that a statute ought not to operate to the detriment of those whose interests it v.'as aimed to protect. On this principle, in the present case, if the county appears from the facts stated in the record as interested in the outcome of this action, plaintiff's demurrer should be sustained. Bowditch v. Ins. Co., 141 Mass. 292. From the facts stated in the pleadings it is clear that the county had a right to regard plaintiff as trustee of the note for the county. For aught that appears on the record this right of the county in the note continues in existence; if so, the county has an interest in this action. It would therefore seem that the plaintiff should have prevailed on his demurrer. Contracts — Public Policy. — In accordance with a Resolution of the Massachu- setts Legislature, the Governor and Council employed the agent of the Commonwealth for the prosecution of war claims against the United States, to prosecute the claim of the Commonwealth for a refund of the direct tax paid the United States in i86r. Plaintiff held the office named, and consequently was appointed. His compensation was to be two per cent of any amount he should collect, to be paid out of the proceeds received therefrom. By the efforts of himself and similar agents from other States, an act was passed providing for the refunding of the direct tax. Held, petitioner could recover from the Commonwealth. Davis v. Commonwealth, 41 N. E. Rep. 292 (Mass.). The question of public pclicy is always a broad one. Such a contract is that set out above, if made between two individuals, would, according to the trend of authori- ties, be void as against public policy. Trist. Child, 21 Wall. 441. But the legisla- ture can regulate public policy. They are the representatives of the people. As the court says. " The legislature can determine for itself what public policy requires or per- mits to be done in the prosecution, in any form of claims of the Commonwealth against the United States. " The resolution was not passed to favor Davis. It was enacted for the good of the people of Massachusetts, and as it was necessary to pay some ore to aid in the passing of the refunding law, the casedoes not seem to be one in which the legislature cannot legally pass an act setting aside the general law. At all events, as the legislature had sanctioned the contract made betwee i the Governor and Council and the petitioner, and as it had a right to provide for the compensation of its own agents, the court could not, as a judicial body, declare the contract void. Contracts — Recovery on Ultra Vires Contracts — Res Judicata. — Con- tract for money paid without authority of plaintiffs to defendants by a joint manager of plaintiff and defendant. Defendant contended, ( I ) that the contract which gave rise to the i^ayment was ultra vires ; (2 ) that the plaintiff had sued defendant on this claim in the court below, and was estopped by the judgment of that court iu his favor to raise