Porter v. Havens & Abbott

By the Gourt, Hogeboom, J. The material inquiry is, whether the contract in question is upon its face unlawful. The suit is upon notes which were put into the hands of a third party, and not to be delivered nor take effect until the criminal prosecutions then pending against George F. Havens were discontinued and ended. And the payee was also not to arrest George F. Havens on any process whatever, but to cease all prosecutions against him. There was therefore an inducement and consideration to discontinue and terminate the criminal prosecutions, and plainly to accomplish this result the notes were given. The agreement was not in so [348] many words that Barron should discontinue or terminate the criminal prosecutions, or use his influence for that purpose, which would have heen, I think, an immoral and corrupt agreement; but that until the prosecutions were ended, he should not have the notes. I think in effect the agreements were similar, and that the object and intent of both was to obstruct the course of justice, for a pecuniary consideration. A temptation was held out to Barron, to.wit, that he thus procured the responsibility of the defendant in addition to that of the original debtor. Furthermore, Barron was not to arrest, or cause to be arrested, Havens, on any process whatever—of course embracing criminal as well as civil process— and implying that if he escaped or was bailed out from prison, Barron should employ no measures whatever to arrest him, “but should cease all proceedings against him.” This implies that he should drop the criminal prosecution, so far as he was concerned—not appear against him—and that he should, if possible, cause the criminal proceedings to be brought to a close. I do not see that any other fair or reasonable interpretation can be given to this language. And if this be its true interpretation, it can scarcely be doubted that it is a contract forbidden by law, immoral and corrupt upon its face. (Bell v. Leggett, 7 N. Y. Rep. 176. Barton v. Port Jackson Plank Road Co., 17 Barb. 397. Moseley v. Moseley, 15 N. Y. Rep. 334. Leavitt v. Palmer, 3 id. 19. Nellis v. Clark, 4 Hill, 424. Rose v. Truax, 21 Barb. 361. Steuben Co. Bank v. Mathewson, 5 Hill, 249. Daimouth v. Bennett, 15 Barb. 541.) If this be the plain meaning of the contract, upon it face, then it is not open to explanation by paroi. It must be its own interpreter. Hence paroi evidence to show that there was no agreement or understanding to suppress or withhold evidence on the trial, or to put an end to the indictments; or that the consideration was not for such a purpose, nor to compound a felony or criminal offense, or do any other unlawful act, was in direct contradiction of the written contract, [349] or for the purpose of explaining away an illegal intent patent upon the face of the written.instrument, and therefore inadmissible. [Albany General Term, May 5, 1862. 80, also, evidence of the subsequent action of the parties, as that Barron did not put an end to the indictments, but that they were disposed of without his interference, was but the attempt of an interested party to gloss over a criminal motive and a corrupt agreement by a subsequent refusal to carry out the original intent. The vice of the transaction lies in the corrupt intent, and not merely in its successful accomplishment. So, also, the offer to prove that the contract was entered into at the request of the defendant, and not of Barron, was an immaterial circumstance. Which proposed or requested it was of no importance, so long as both were brought into the contract by their free will and consent. Hence all the plaintiff’s offers of evidence, as to which the judge’s action is assailed, were properly overruled. And as the evidence was undisputed and uncontradicted, I perceive no error in the judge directing a verdict for the defendant, and in refusing to submit to the jury for their determination the proper legal construction to be given to a written instrument not equivocal in its terms nor ambiguous upon its face. I .think the motion for a new trial upon the exceptions should be denied. Sogeboom, Peckham and Miller, Justices.]