dissenting. — I think that the -plaintiffs are entitled to recover. In determining whether they are or not, we have to consider, first, whether the illegality was in the contract itself, or merely in the manner of performing it, and second, whether, if it was merely in the manner of performing it, that should preclude the plaintiffs from recovering. In the construction of the contract I think that there is no reasonable room for doubt. It is agreed that the contract was that “ the threshing was to be done with a machine, all rods, knuckles and joints of which were unboxed.” Now this either means simply that the rods, etc., were unboxed at the time the contract was made, or that they should remain unboxed during the performance of the work. That the former is the true meaning is to my mind entirely clear. The plaintiffs agreed to do the defendant’s threshing with their machine, or some other machine which the parties had in mind, and that machine had unboxed rods. This is the fair construction to be given to the words in which we find the contract expressed, in the agreed record. If the contract had the other meaning it would not only be illegal but unaccountable. What possible motive can we suppose the parties *305to have had to agree that the rods should remain unboxed while the work should be done?
4 _. con_ struction. Again, we are not to presumé that the parties intended to violate the law, but we are to presume the contrary. If a contract is susceptible of two meanings, one legal and the other not, that meaning will be given it' which will make the contract legal. Chitty on Con., 977.
But to my mind it is unnecessary to resort to this rule of construction. I think it may be demonstrated that the parties did not agree that the rods should remain unboxed while the work should be done. Suppose the plaintiffs had boxed the rods and performed the work with them boxed, would that have been a performance of the contract within its fair intendment? That it would I think will not bo denied. It seems to me absurd to suppose that the mere fact that the rods were unboxed at the time the contract was made (and that is the literal construction of the words used), would-enable the defendant to escape liability to pay for the work if the rods were boxed at the time the work was done. It follows, however, that if the contract could have been performed with the rods boxed, it was not a part of the contract that they should remain unboxed.
8. -: when Fsein°egaLnoe Having shown, as I think, that the illegality was not in the contract but in the manner of performing it, I come to the second inquiry, and that is whether the illegal performance of a legal contract should prevent the plaintiffs from recovering.
In Wetherell v. Jones, 3 B. and Ald., 221, Lord Tkntleden said: “Where the consideration and matter to be performed are both legal, we are not aware that a plaintiff has ever been precluded from recovering by aft infringement of the law not contemplated by the contract, in the performance of something to be done on his part.” In Smith on Con., 247, the author, in speaking of the distinction to be made between a contract which is legal and some incidental illegality in carrying it into effect, says: “ In these cases the contract is good and may be made the subject-matter of an action, notwithstanding the breach of the law which has occurred in carrying *306it into effect.” By way of illustration, he says: “Suppose, for instance, A employs B, a builder, to repair the front of his house, and B in so doing erects an indictable nuisance in the public street; still, as the contract to repair the house is legal, and the erection of the nuisance in doing so was not contemplated in the agreement, B might recover for the repairs which he executed.” The correctness of this doctrine, so far as I have discovered, is nowhere disputed. The only case which I have seen which supports the doctrine of the majority opinion is Ingersoll v. Randall, 14 Minn., 400. In that case the turning point is expressed in these words: “The threshing, which wás the consideration of the defendant’s promise, was unlawful, and therefore will not support the promise.” But it is plain to be seen that the court failed to observe the distinction which is to be made between the .doing of a thing which the law prohibits, and the doing of a thing which the law allows, hut in a manner prohibited. One of the three judges constituting the court dissented, and I cannot think that the case should have much weight with us as an authority.