Ricketts v. Harvey

Elliott, J. The appellant assails one of the instructions ■given by the trial court, but we feel bound, upon an exam — 565 — ination of the record, to sustain the contention of the appellees, that as no exception was reserved no question is presented for our consideration. The record, however, is not free from confusion, and fearing that we may possibly be in error in holding that there' was no exception, we have examined the question sought to-be presented, and the result of our examination is, that, conceding that the instruction is erroneous, and conceding, also, that there was an exception, there can be no reversal. The record shows that no harm was done the appellant even if ‘ the instruction was erroneous. An answer returned by the* jury to an interrogatory propounded to them shows that the-promissory notes, upon which the appellant’s cause of action, is founded, were given for an illegal consideration. The interrogatory and answer to which we refer read thus: “Was not the consideration of the notes in suit that Hinton and Ricketts would use their influence to procure the acquittal of Miles Harvey, who was then being prosecuted in the Howard Circuit Court upon a charge of having obtained goods of said Ricketts and Hinton under false pretences? Answer : Yes.” An agreement to stifle or hinder a public prosecution for a felony is illegal, and a promissory note given in consideration of such an agreement can not be enforced. Ricketts v. Harvey, 78 Ind. 152; Crowder v. Reed, 80 Ind. 1. Many decisions affirm that where it appears from the answers to interrogatories that the appellant could not have-been harmed by an instruction, the judgment will not be reversed although the instruction was wrong. Worley v. Moore, 97 Ind. 15; Stockton v. Stockton, 73 Ind. 510; Ferguson v. Hosier, 58 Ind. 438. ' If the promissory notes which constituted the cause of action upon which the plaintiff must recover, or not recover at all, were founded on an illegal consideration, then, no matter what- the court may have instructed upon the subject of' an executed consideration, the verdict is right. The defence — 566 — which the answer to the interrogatory reveals renders a recovery by the plaintiff legally impossible. It cuts up his cause of action “ root and branch.” There may be cases where an instruction brings about, or tends to bring about, a wrong answer to an interrogatory, in which the judgment should be reversed, but this is not such a case. The first instruction asked by the appellant was properly refused. If the consideration of a promissory note is in part illegal and in part legal, and is indivisible, there can be no recovery upon the note. There are cases where the consideration may be separated and the legal severed from the illegal, but, upon the facts assumed in the instruction under immediate mention, this can not be done, for upon those facts the legal conclusion is, that the taint of illegality permeates the entire consideration, fatally poisoning it. Where the illegal and the legal are so blended that they can not be separated, the whole consideration is corrupted. If it was legally possible to separate the good from the bad, the instruction ought to have done so, and not have asked a recovery for the entire consideration. In cases where a severance is proper, there can only be a recovery pro tanto, and it was, therefore, error to ask, as the instruction before us does, a recovery upon the whole consideration on which the cause of action rested. It is settled law that a court is not bound to remodel an instruction, by remedying its defects or removing its infirmities; unless the party is entitled to have it given in terms as prayed, the court may properly refuse it. Goodwin v. State, 96 Ind. 550, and authorities cited, p. 566. The instruction was correctly refused for the reasons already given, but there are still other reasons which condemn it; of these it is only necessary to mention one, and 'that is, the instruction does not exclude the illegal element, but proceeds upon the hypothesis that, although there may have been a taint of illegality, still, if there was some other consideration, the plaintiff might recover. This is radically wrong. If the — 567 — agreement to interfere with the administration of the law entered into the consideration, then, unless it could be cleanly and clearly severed from the legal consideration, there could be no recovery, and no instruction can be deemed correct which assumes that there was a taint of illegality and asserts a right of recovery, unless it plainly directs the jury that the case is one where there may be a separation of the good from the bad, anck informs them that, even if that be true, only so much of the contract as rests on the legal consideration can be enforced. Filed April 15, 1886; petition for a rehearing overruled June 5, 1886. The second instruction asked by the appellant is embraced in one given by the court, and there was no error in refusing it. Union M. L. Ins. Co. v. Buchanan, 100 Ind. 63. Judgment affirmed.