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 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 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 much of the space in defendant's paper as it devoted to real estate advertising, and, in this business, there would arise the duty in the contract. There was, bv implication, the promise of plaintiff to manage the busines faithfully, and with due regard to the interest of his principal

The question of the legality of the contract is, therefore, squarely presented; and with a view to that question, and to

some propositions that are made in connection with it, it is necessary to say that the contract is entire, so that any taint of illegality in one part affects the whole of it. There is no way of severing it, so we can say that, although its stipulations as to the Sunday Globe may be in violation of law, and therefore void, yet those as to the daily and weekly Globe may be upheld; or so that, although for what was to be done under it prior to January 1, 1886, when the Penal Code went into effect, it was void, it might yet be upheld for all that it provided for after that date. To attempt that would be to attempt making another contract for the parties,—one that the present contract furnishes no reason to suppose they would have made for themselves. All of the provisions of the contract must, therefore, stand or fall together.

The plaintiff insists that the contract was not illegal, for it neither was executed on Sunday nor required plaintiff or defendant to do anything on Sunday. It bound defendant to maintain and issue a weekly, a daily, and Sunday Globe for the time specified in it; and it required plaintiff's services in the preparation and procuring, so far as related to the real estate advertisements, of material for each of those editions of the paper. According to the terms of the contract, the defendant was no more at liberty to discontinue its Sunday edition than to discontinue its daily or weekly edition, or all its editions. The theory of the complaint is, that it was bound to continue them all; so that if to issue, publish, and circulate a newspaper on Sunday was against the law as it existed when this contract was made, then the parties contemplated and stipulated for a violation of the law by each. The law in reference to Sunday in force at the time when the contract was made was section 20, chapter 100, General Statutes of 1878, as follows: "No person shall keep open his shop, warehouse, or work-house, or shall do any manner of labor, business, or work, except only works of necessity and charity, on the Lord's day, commonly called Sunday; and every person so offending shall be punished by a fine," etc. A contract which requires or contemplates the doing of an act prohibited by law is absolutely void. No cases of the kind have been more frequently before the courts than contracts which were made on Sunday, or which required or provided that something prohibited by the statute should be done on Sunday; and in no instance has any court failed to declare such a contract void. Unless the issuing and circu

lating a newspaper on Sunday is, within the meaning of the statute, a work of necessity, it is prohibited by it as much as any other business or work. The newspaper is a necessity of modern life and business; but it does not follow that to issue and circulate it on Sunday is a necessity. There are a great many other kinds of business just as necessary; many, indeed most, kinds of manufactures and mercantile business are indispensable to the present needs of men, but no one would say that, because necessary generally, the prosecution of such business on Sunday is a work of necessity. That carrying on any business on Sunday may be profitable to the persons engaged in it; that it may serve the convenience or the tastes or wishes of the public generally, -is not the test the statute applies. To continue on that day the sale of dry goods or groceries, or the keeping open of markets, saloons, theaters, or places of amusement, might be regarded by many as convenient and desirable, but that would not bring such business within the exception in the statute.

At the time this contract was made, the issuing, publishing, and circulating a newspaper on Sunday was contrary to law; and as the contract provided for that, and as it was indivisible, it was thereby rendered wholly void. The Penal Code went into effect January 1, 1886. Section 229 provides that certain kinds of articles, among them newspapers, may be sold in a quiet and orderly manner on Sunday. Plaintiff contends that the recognition of this contract, and the continuance of business under it for more than a year after the issuance of the Sunday paper became legal by the provisions of the Penal Code, constituted such a ratification of the contract as relieved it of any original taint of illegality. There is a difference in the decisions on the question whether a contract, void merely because it was made on Sunday, may be ratified on a secular day, so as to become valid; but there is no conflict of decisions on the proposition that a contract, void because it stipulates for doing what the law prohibits, is incapable of being ratified. That is this case. The contract contemplated the doing what the law then in force prohibited, and for that reason it was void. It is true, the law was so changed after the contract was made that, from the time of the change, it became, as plaintiff claims, lawful to do those things provided in the contract which were unlawful at the time it was made; and so that, as he claims, a contract like this, made after the change went into effect, would have been

valid. But that could not affect the validity of the previous contract, which was void from the beginning. The parties might have made a new contract, to commence on or after January 1, 1886; but, because of the illegality in it, they could not, at any time, ratify this contract from the beginning; and, because it is entire and indivisible, they could do nothing amounting to less than the making of a new contract which could give vitality to it for the time since January 1, 1886. An entire contract must be ratified, if at all, as an entirety.

Order affirmed.

- PLEADING.

ILLEGAL CONTRACTS -The illegality of a contract to be available as a defense must be pleaded: Heffron v. Pollard, 73 Tex. 96, 15 Am. St. Rep. 764.

SUNDAY CONTRACTS. - What are "works of charity or necessity," within the exception of the statute forbidding labor on the sabbath-day, see note to Hennersdorf v. State, 8 Am. St. Rep. 449. As to the validity of contracts made on Sunday, see note to Robeson v. French, 45 Am. Dec. 237, 238; Allen v. Duffie, 43 Mich. 1; 38 Am. Rep. 159, and note 165-167; note to Coleman v. Henderson, 12 Am. Dec. 292, 293. As to ratification of contracts made on Sunday, see note to Coleman v. Henderson, 12 Am. Dec. 293, 294. The publication of a sheriff's notice of sale in a Sunday newspaper is invalid: Shaw v. Williams, 87 Ind. 158; 44 Am. Rep. 756. In Sheffield v. Balmer, 52 Mo. 474, 14 Am. Rep. 430, where plaintiffs contracted to publish an advertisement in the weekly (Sunday) edition of their paper for a year, which, however, did not appear, it was held that the contract was valid, as it could not be presumed that the contract contemplated any labor to be done on Sunday.

ILLEGAL CONTRACTS. — If any part of a consideration is illegal, the whole contract is void as against public policy, even though the illegal act or promise is coupled with one which is legal: McNamara v. Gargett, 68 Mich. 454; 13 Am. St. Rep. 355; for illegal contracts cannot be divided and held valid in part and invalid in other parts: Santa Clara etc. Co. v. Hayes, 76 Cal. 387; 9 Am. St. Rep. 211.

In Baird v. Boehner, 77 Iowa, 622, where the plaintiff, an unmarried woman, pregnant by defendant, agreed in writing with him to leave and stay away from their place of residence one year, to waive all civil claims against him, and to waive all criminal claims against him, in consideration of certain monthly money payments, and the conveyance to her of certain realty by defendant, the court held that the several elements of the woman's contract were so connected, as constituting the consideration of defendant's promise to pay and convey, that they could not be separated, and the contract was therefore void in toto.

ILLEGAL CONTRACTS - RIGHTS OF PARTIES. As between original parties and all parties in pari delicto, the courts will not enforce illegal contracts: Bowman v. Phillips, 41 Kan. 364; 13 Am. St. Rep. 292; Leonard v. Poole, 114 N. Y. 371; 11 Am. St. Rep. 667, and note; and there is no liability to a party for failing to perform a nudum pactum: Metzger v. Franklin Bank, 119 Ind. 359. In Jones v. Hanna, 81 Cal. 507, the rule was followed that courts will not aid parties in the enforcement of contracts interdicted by law.

GOODSELL V. TAYLOR.

[41 MINNESOTA, 207.]

PASSENGER-ELEVATOR-NEGLIGENCE IN CARE OF PROOF SUFFICIENT TO ESTABLISH. In an action for damages sustained from the giving way of a passenger-elevator in consequence of the breaking of the cable connected therewith, evidence that such cable has been so long in use as to be seriously worn, weakened, and rendered insecure, and that such wearing could easily have been seen if properly looked after, is sufficient to justify the jury in finding negligence in the care and management of the elevator. PASSENGER-ELEVATOR — QUESTION OF NECESSITY OF EXAMINATION OF AS TO ITS SAFETY, FOR JURY. Whether due care and prudence required the examination of the cable of a passenger-elevator in order to ascer tain its condition as to safety, is not a question of expert evidence, but is for the jury to determine. PASSENGER-ELEVATOR. — PRESUMPTION OF SAFETY OF CABLE of a passengerelevator does not arise from the fact that it is not obviously dangerous, and has been used with safety for years, nor will it be presumed that it will continue safe for use without examination to ascertain its condition, and if its safety may not have become impaired by wear.

PASSENGER ELEVATOR RELATION BETWEEN OWNER AND PASSENGER THEREIN. The relations between the owner and manager of a passenger-elevator and those carried in it are similar to those between a carrier of passengers and those carried by him. Such owner is required to exert the utmost human care and foresight, and is respon sible for the slightest degree of negligence; and in case of the giving way of the elevator, causing injury to a passenger, the burden of proof is on the owner to show that it occurred through no fault or neglect of his. TRIAL — PRESUMPTION AS TO CORRECTED INSTRUCTION. — Where the trial court in its charge corrects a proposition objected to, it will be presumed that the jury accepts the correction as the law of the case. APPEAL from an order refusing to grant a new trial after verdict for plaintiff for $1,275.

Clapp ana Woodard, for the appellant.

Mason and Hilton, for the respondent.

GILFILLAN, C. J. Action for damages sustained from the giving way of an elevator at a hotel, in which the plaintiff was riding at the time. The objection is made that there was no evidence of negligence on the part of the owner of the hotel. The evidence was such as to make that a question for the jury. The fall of the elevator was in consequence of the cable breaking. As the evidence suggests no other cause for its breaking, it must have happened either from its having been originally insufficient, or from its having become insecure from wear. It appears to have been in use three or four years, so far as appears, without accident; and