(— Iowa, —, 199 N. W. 988.) by the courts in cases where, while both parties were liable to the person injured because of some breach of duty, yet, as between the wrongdoers themselves, by reason of their relations or a difference in the character of the duty under which they rested, they were not equally guilty, were not in pari delictu. -committing wrongful acts. -doing of act merely malum prohibitum. Where two parties commit an unlawful act involving moral turpitude or delinquency, to the injury of another, they are equally guilty, and as between them the law will not inquire into their relative delinquency or compel contribution at the instance of one who has paid the damages. But if their act be merely malum prohibitum, and is in no respect immoral, while they are both liable to one injured by their unlawful act, if one has paid the damages the law will not refuse, as between the wrongdoers, to determine their relative guilt and administer justice. between them. Lowell v. Boston & L. R. Co. 23 Pick. 24, 34 Am. Dec. 33; Washington Gaslight Co. v. District of Columbia, 161 U. S. 316, 40 L. ed. 713, 16 Sup. Ct. Rep. 564; Union Stock Yards Co. v. Chicago, B. & Q. R. Co. 196 U. S. 217, 49 L. ed. 453, 25 Sup. Ct. Rep. 226, 2 Ann. Cas. 525, 17 Am. Neg. Rep. 760. -trespass or nufsance. Where one of two parties does an act or creates a nuisance, and the other, while not joining in the act, is nevertheless thereby exposed to liability to one injured, the rule that there is no contribution between joint tort-feasors does not apply, and the one who was the primary and active wrongdoer can be compelled to make good to the other any loss occasioned by the act. Chicago & N. W. R. Co. v. Dunn, 59 Iowa, 619, 13 N. W. 722; Westfield Gas & Mill. Co. v. Noblesville & E. Gravel Road Co. 13 Ind. App. 481, 55 Am. St. Rep. 244, 41 N. E. 955; Pennsylvania Steel Co. v. Washington & B. Bridge Co. (D. C.) 194 Fed. 1011; Des Moines v. Barber Asphalt Co. (D. C.) 208 Fed. 828; Chesapeake & O. Canal Co. v. Allegany County, 57 Md. 201, 40 Am. Rep. 430; Gray v. Boston Gaslight Co. 114 Mass. 149, 19 Am. Rep. 324; Pfau v. Williamson, 63 Ill. 16; Philadelphia Co. v. Central Traction Co. 165 Pa. 456, 30 Atl. 934; Minneapolis Mill Co. v. Wheeler, 31 Minn. 121, 16 N. W. 698; Churchill v. Holt, 127 Mass. 165, 34 Am. Rep. 355; Oceanic Steam Nav. Co. v. Compania Transatlantica Espanola, 134 N. Y. 461, 30 Am. St. Rep. 685, 31 N. E. 987; Union Stock Yards Co. v. Chicago, B. & Q. R. Co. supra. Of this class are the numerous cases holding that a municipality, upon being called upon to pay a judgment against it for damages caused by the negligence of one occupying a street or sidewalk as a licensee and under obligation to avoid the creation of a nuisance, may recover the amount so paid from the party primarily responsible for the condition complained of. Ottumwa v. Parks, 43 Iowa, 119; Des Moines v. Des Moines Water Co. 188 Iowa, 24, 175 N. W. 821; Catterlin v. Frankfort, 79 Ind. 547, 41 Am. Rep. 627; Chicago v. Robbins, 2 Black, 418, 17 L. ed. 298; Old Colony R. Co. v. Slavens, 148 Mass. 363, 12 Am. St. Rep. 558, 19 N. E. 372; Severin v. Eddy, 52 Ill. 189; Washington Gaslight Co. v. District of Columbia, 161 U. S. 316, 40 L. ed. 712, 16 Sup. Ct. Rep. 564. Where one is employed or directed by another to do an act not manifestly wrong, the law implies a promise of indemnity by nity of agent the principal for principal. damages resulting Principal and agent-indem for act done for proximately from the good-faith execution of the agency. Henderson v. Eckern, 115 Minn. 410, 132 N. W. 715, Ann. Cas. 1912D, 989; Guirney v. St. Paul, M. & M. R: Co. 43 Minn. 496, 19 Am. St. Rep. 256, 46 N. W. 78; Ladd v. Waterbury, 34 Vt. 426; Lowell v. Boston & L. R. Co. supra; Williams v. Mercer, 144 Mass. 413, 11 N. E. 720; Gower v. Emery, 18 Me. 79; Drummond v. Humphreys, 39 Me. 347. One of the tests in determining whether there may be contribution or indemnity in favor of one joint Contributionjoint creditors and debtorsindemnity-test of right. wrongdoer against another is whether the former knew, or must be presumed to have known, that the act for which he has been held liable was wrongful. Johnson v. Torpy, 35 Neb. 604, 37 Am. St. Rep. 447, 53 N. W. 575; Acheson v. Miller, 2 Ohio St. 203, 59 Am. Dec. 663; Gower v. Emery, 18 Me. 79; Drummond v. Humphreys, supra; Armstrong County v. Clarion County, 66 Pa. 218, 5 Am. Rep. 368; Bailey v. Bussing, 28 Conn. 455; Jacobs v. Pollard, 10 Cush. 287, 57 Am. Dec. 105; Farwell v. Becker, 129 Ill. 261, 6 L.R.A. 400, 16 Am. St. Rep. 267, 21 N. E. 792; Atkins v. Johnson, 43 Vt. 78, 5 Am. Rep. 260. See also 6 R. C. L. 1054, and 31 C. J. 455. Joint creditors and debtors indemnityduty of city to indemnify contractor. With these principles in mind it seems clear that the facts of the present case bring it within an exception to the general rule that there can be no contribution or indemnity between joint tortfeasors. The appellee was but carrying out his contract with the city. That contract provided that the city should procure the necessary right of way for the construction of the bridge and approach. Any uncertainty in this respect arising from the somewhat ambiguous language of the contract is entirely removed by the stipulation upon which the case was submitted. He entered upon the land of the Central Ice Company and constructed the approach thereon, by direction of the city's engineer in charge of the work. While as between himself and the owner of the property he was a trespasser, and liable as such, as between himself and the city he was but acting in fulfilment of his contract and under the direction of the properly constituted authority of an officer of the city. He had a right to assume, when directed to proceed with the work upon the premises of the Central Ice Company, that the city had, in compliance with its contract, procured the right to so use the ground. What he did was done not for himself, but for the city and under its direction. It involved no moral delinquency, but, so far as he was concerned, was merely the performance of his legal contract. That he acted in ignorance of the fact that the city had no right to go upon the land in question is the plain inference from the facts stipulated. As between himself and the city, the wrong was the wrong of the city; they were not in pari delictu. Nor do we think the city was relieved from liability by provisions of the contract to the effect that appellee Indemnity-efshould indemnify fect of contract. and hold the city harmless from all injury or damages to persons or property, arising from any act done or suffered to be done by the appellee, and that appellee would pay all just claims growing out of the work because of trespass, waste, or negligence of any kind on the part of appellee. pellee. It would not be contended, we think, that these provisions could operate to relieve the city from its obligation to procure the necessary right of way for the construction of the bridge. But, if they are to be construed as requiring appellee to pay the damages caused by his entry, under direction of the city, upon the land where the bridge and approach were to be constructed, and which the city undertook to procure for that purpose, he could as logically and reasonably be required to pay the damages caused by the taking of the land and the construction thereon of the permanent improvement. The effect of these provisions of the contract was neither to release the city from its obligation to procure the right of way, nor to relieve it, as between itself and appellee, from liability for the damages caused by an act of the appellee, committed under its direction in (Iowa, -, 199 N. W. 988.) the carrying out of the contract, and which would not have been wrongful had the city, as appellee had a right to assume, performed its contract. The judgment is right, and is affirmed. Arthur, Ch. J., and Stevens and De Graff, JJ., concur. NOTE. The liability of contractor and contractee inter se in respect of damages paid to third persons for injuries sustained during the progress of the stipulated work is the subject of the annotation following JOHN GRIFFITHS & SON Co. v. NATIONAL FIREPROOFING CO. post, 566. Contracts, § 368- indemnity against statutory liability public policy. 1. Public policy does not prevent a contractor from undertaking to indemnify the building owner against loss due to his negligence in failing to have a scaffold safe, although the statute makes it the owner's personal duty to see that it is safe. [See note on this question beginning on page 566.] 2. The duty imposed by statute upon the owner of a building under construction to take certain precautions against injury to persons in the vicinity cannot be evaded by contract with a contractor or subcontractor. [See 14 R. C. L. 99; 3 R. C. L. Supp. 172; 5 R. C. L. Supp. 745. See also note in 23 A.L.R. 989.] Joint creditors and debtors, § 13 - [See 6 R. C. L. 1056; 5 R. C. L. Supp. 388.] APPEAL by defendant from a judgment of the Third Branch of the Appellate Court, First District, affirming a judgment of the Municipal Court of Chicago (Hayes, J.) in favor of plaintiff in an action brought to secure indemnity for damages paid by it to a third person for an accidental injury. Affirmed. The facts are stated in the opinion of the court. Mr. John T. Richards, for appellant: A contract or undertaking to indemnify a person against loss which such person may suffer by reason of his own violation of the law is against public policy and void. Herman v. Jeuchner, L. R. 15 Q. B. Div. 561 C. A.; Nash v. Monheimer, 20 Ill. 215; Goodrich v. Tenney, 144 Ill. 422, 19 L.R.A. 371, 36 Am. St. Rep. 459, 33 N. E. 44; Fields v. Brown, 188 Ill. 111, 58 N. E. 977; Penn v. Bornman, 102 Ill. 523; Nelson v. Cook, 17 Ill. 443; Crichfield v. Bermudez Asphalt Paving Co. 174 Ill. 466, 42 L.R.A. 347, 51 N. E. 552; Compton v. Bunker Hill Bank, 96 Ill. 301, 36 Am. Rep. 147; Harris v. Hatfield, 71 Ill. 298; Douthart v. Congdon, 197 Ill. 349, 90 Am. St. Rep. 167, 64 N. E. 348; Henderson v. Palmer, 71 Ill. 579, 22 Am. Rep. 117; Brown v. First Nat. Bank, 137 Ind. 655, 24 L.R.A. 206, 37 N. E. 158; Buffendeau v. Brooks, 28 Cal. 641; Miller v. Ammon, 145 U. S. 421, 36 L. ed. 759, 12 Sup. Ct. Rep. 884; Harrington v. Crawford, 136 Mo. 467, 35 L.R.A. 477, 58 Am. St. Rep. 653, 38 S. W. 80; Wright v. Gardner, 98 Ky. 454, 33 S. W. 622, 35 S. W. 1116; Ratcliffe v. Smith, 13 Bush, 174; Collins v. Blantern, 2 Wils. 341, 95 Eng. Reprint, 847; Atkins v. Johnson, 43 Vt. 78, 5 Am. Rep. 260; Shackell v. Rosier, 2 Bing. N. C. 634, 132 Eng. Reprint, 245; Hunt v. Knickerbacker, 5 Johns. 326; West Virginia Transp. Co. v. Ohio River Pipe Line Co. 22 W. Va. 600, 46 Am. Rep. 527. Where both parties are guilty of a violation of the statute, the court will not inquire which of the two is more in the wrong. Pierson v. Thompson, 1 Edw. Ch. 212; Harris v. Hatfield, 71 Ill. 298; Stanton v. Metropolitan R. Co. 14 Allen, 485; Atkins v. Johnson, 43 Vt. 78, 5 Am. Rep. 260. The parties to this case are not joint tort-feasors. Yeazal v. Alexander, 58 Ill. 254. Messrs. Winston, Strawn, & Shaw, John Clark Baker, John D. Black, and Rodney C. Glover for appellee. Dunn, J., delivered the opinion of the court: The appellate court for the first district affirmed a judgment of the municipal court of Chicago in favor of the John Griffiths & Son Company against the National Fireproofing Company for $9,921.87. The appellant, having obtained a certificate of importance, has prosecuted an appeal to this court from the judgment of the appellate court. The municipal court sustained the motion of the appellee to strike out the affidavit of merits of the appellant and rendered judgment by default. The question presented, therefore, is whether the affidavit of merits stated a defense to the appellee's claim. The appellee's statement of claim showed the following facts: The appellee, being the general contractor for the construction of the Lytton Building, in the city of Chicago, for The Hub, a corporation, which was the owner, entered into a contract with the appellant to do the fireproofing work on the building. The contract provided that the appellant should exercise due diligence in the performance of the work, and should hold the appellee and The Hub harmless from loss, cost, or expense arising from any and every accident happening to any person whomsoever and occasioned directly or indirectly by the operations of the appellant or by its subcontractors. During the progress of the appellant's work under this contract John Slaughter was accidentally injured by a piece of fireproof tiling of the appellant falling out of one of the windows of the building on his head. Immediately before the happening of the accident, the appellant had erected a scaffold on one of the upper floors of the building, which was used by its servants in its operations under the contract, one of whom placed a pile of fireproof tile on the scaffold, a part of which fell off the scaffold upon the window ledge, and through the window on Slaughter. Slaughter afterwards brought suit in the superior court of Cook county against the appellee, The Hub, and others, including appellant, for the recovery of $30,000 damages on account of his injuries. The appellant, in consideration of the execution of a covenant by Slaughter not to prosecute any action against it, paid (310 I. 331, 141 N. E. 739.) him $7,500, and Slaughter dismissed his action. Afterwards he brought another action in the circuit court of Cook county against the appellee, The Hub, and others, not including the National Fireproofing Company, to recover $30,000 damages for his injuries. The appellee notified the appellant of the pendency of the action, and demanded that the appellant assume the defense of it, and hold the appellee harmless from any judgment or expense growing out of it; but the appellant refused to defend the action, and the appellee by its attorney defended. The declaration of Slaughter consisted of eight counts, but, as the cause was tried on the first four, only those counts need be stated. Each of the first four counts alleged that the defendants were engaged in the construction of the Lytton Building, and that a scaffold had been erected, with their knowledge and consent, on the ninth floor; that the defendants wilfully failed to comply with the provisions of § 9 of the act, providing for the protection and safety of persons engaged in the construction, repairing, alteration, or removal of buildings, bridges, viaducts, and other structures (Laws 1907, p. 312), and did not cause the scaffold to be erected in a safe, suitable, and proper manner, but permitted it to be erected and constructed in such a manner that it was shaky and easily vibrated, and they permitted large quantities of building material, consisting of tile, brick, and terra cotta, to be piled on the scaffold, and while the plaintiff was working in another building adjoining the Lytton Building a piece of such material fell from the scaffold upon the plaintiff, struck him upon the head, and injured him. The appellee's statement of claim set forth that the building in the declaration mentioned was the building upon which the appellant was conducting its operations under its contract with the appellee; that the scaffold was the appellant's scaffold, and the building material — tile, brick, and terra cotta-was the prop 38 A.L.R.-36. erty of the appellant, and all the employees and servants mentioned in the declaration were the servants of the appellant; that on the trial of the action the judge instructed the jury there could be no recovery on any other ground than a violation of the statute relied upon in the plaintiff's' declaration, and thereupon the jury returned a verdict against the appellee and The Hub, assessing the damages at $20,000, for which judgment was entered. The appellee and The Hub prayed an appeal to the appellate court, which affirmed the judgment to the amount of $7,500, all of the judgment above that amount being remitted by the plaintiff. The appellee paid Slaughter the amount of the judgment and paid its attorneys $1,000 for their services in defending the action. The amended affidavit of merits set out at length §§ 1 and 9 of the act of the legislature mentioned in the appellee's statement of claim, and alleged that in John Slaughter's suit, in which jdugment was rendered against the appellee, the declaration charged that the failure of the appellee to comply with the terms of the statute caused the injury and damages complained of. It set forth the instructions of the court, which told the jury, in substance, that they should find any defendant who was not shown by the preponderance of the evidence to have had knowledge of the erection or construction of the scaffold, or to have consented to its construction or erection, not guilty, and that, regardless of any other question, there could be no recovery under the statute, unless it was proved that the violation of such statute, if any, was intentional and wilful. The affidavit alleged that by the verdict and judgment of the circuit court the appellee was adjudged guilty of the violation of the statute and of failure to comply with its requirements. It is contended by the appellant that its undertaking to indemnify the appellee against all loss, cost, or expense arising from any accident to any person occasioned by the opera |