Wayman Investment Co. v. Wessinger

[109]

HALL, J.

Appeal from judgment in favor of plaintiff for the sum of $300, rental for certain premises leased by plaintiff to defendants by a written lease.

The lease was executed in September, 1906, and the defendants entered into possession of the demised premises, and have ever since continued in possession, but refuse to pay the agreed rental falling due ■ March 12, 1908, solely upon the ground that the building which they leased and the possession of which they have enjoyed, and apparently still retain, was erected in violation of the provision of the ordinance establishing fire limits and regulating the construction of buildings.

It is contended by appellant that because the erection of the building was a violation of such ordinance punishable by a fine, the consideration for the contract of lease between plaintiff and defendants was illegal, and the contract in consequence void.

That a contract founded upon an illegal consideration, or having for its purpose a violation of the law, is void, and may not be enforced, cannot be denied. Such are the cases cited by appellant. But to the proposition that the leasing and giving possession of a building, originally illegally constructed, for an agreed rental involves any violation of law, we cannot agree. The ordinance does not in terms prohibit the leasing of such a building, and the lease in this case was for no illegal purpose.

This case is analogous to

Sharp

v.

Taylor,

41 Eng. Reprint, 1153, 2 Phil. Ch. 801. The action was of an accounting between joint owners of an American vessel. The owners were British subjects, and, in violation of an act of parliament, had caused the vessel to be registered in the name of an American owner in order that she could be used in commerce between American and British ports. The lord chancellor said: “The next point is that plaintiff’s claim is in violation of the English ship registry acts. . . . But the answer to the objection appears to me this—that the plaintiff does not ask to enforce any agreement adverse to the provision of the act of parliament. He is not seeking compensation and payment for any illegal voyage; that matter was disposed of when Taylor received the money; and the plaintiff is now only seeking for payment of his share of