Massillon Savings & Loan Co. v. Imperial Finance Co. , 4 Ohio Law. Abs. 239 ( 1926 )

JONES, J.

1. Where a contract is legal when made, and subsequently such contract or its performance is prohibited by statute, performance thereof after the time when such prohibitive law becomes effective is illegal and neither party can recover for breach of the contract.

2. So far as such contract has been executed prior to the effective date of such statute, recovery will be permitted, if the contract is not entire, but divisible, and the amount due can be apportioned.

3. A party who enters into a contract despite a statute prohibiting it cannot thereafter claim the fruits of its performance in a court of justice.

4. Where the illegality of a contract sued on appears in the answer, and plaintiff relies on a prior adjudication of that question in his favor, he should plead it in his reply. But if such illegality does not appear in the pleadings, but does appear in the evidence offered at the trial, and the plaintiff, without objection, offers evidence supporting such prior adjudication, the evidence so offered on that issue may be considered by the trial and reviewing courts.

Judgment affirmed.

Matthias, Allen and Kinkade, JJ., concur.