W. L. Wilkins & Co. v. Riley

Takbell, J.: Action upon a note; plea — general issue with notice. After careful examination of,this case, we are unable to conclude that there is error. The notice with the general issue sets out with the statement that there were “disputed matters” between the parties, and that “said note was given in full satisfaction of the sameand also, that the plaintiff would dismiss certain suits pending; and also, that plaintiff would not prosecute Wilkins before the grand jury for an assault by the latter upon the former; but that plaintiff did prosecute Wilkins before the grand jury, and put him to cost and trouble to the amount of two hundred dollars, which sum is claimed as partial failure of consideration. Upon the trial the defendant offered to prove, “under the notice filed with the plea,” that “ said plaintiff did, in violation of the agreement as stated in said notice, voluntarily go before the grand jury and prosecute the defendant for an assault and battery, by which defendants were put to great costs, lawyers’ fees, etc., etc., to the extent of three hundred dollars, and that it was a part of the compromise when said note was given that said plaintiff would not voluntarily go before the grand jury, but he did so, and caused a true bill to be found, to their injury, as above stated, and that to the extent of loss so sustained defendants are entitled to a deduction on said note.” The evidence thus offered was objected to and excluded by the court. ■, By the Code of 1871, prosecutions for minor offenses pending in the circuit court can be compromised with the approbation of the court. As the prosecution of Wilkins was not then pending, it was not within the statute, and the agreement for its compromise was-illegal [312] and void. If the agreement not to prosecute criminally, entered into and constituted a part of the consideration of the note, the extent of such consideration is not stated. The notice filed with the plea and the offer of proof proceed upon the theory that the note was given for a valuable consideration. If otherwise, the legal and the illegal parts are not pointed out, so that the latter might be seized upon by the court and excluded from the recovery. The defense was not framed to attack the note as illegal and void, but to reduce the recovery by deducting losses as in violation of a valid contract. The record shows that the case was tried and disposed of upon the idea that the agreement to compromise was legal, and its violation entitled the party to a reduction upon the note. No other idea was presented or acted upon in the court below. It is suggested here, for the first time, that the proposed evidence ought to have been admitted to prove the note illegal. No such proposition was submitted to be passed upon on the trial. The attention of the court below was not even called to this view, but the parties risked their case upon the theory that the agreement was legal and entitled them to a deduction for the damage caused by its violation. As we construe the notice filed with the plea and the proposed testimony, the note is in the nature of an admission of, and represents an actual indebtedness, or. is a promise to pay only that which the party actually owed, no part of the consideration being, in fact, illegal, unless made so by the interpolation of the substantive and independent agreement not to prosecute the defendants criminally, into, and making it a part of, the settlement of other “ disputed matters,” which other disputed matters are alone embraced in the note; a result we are not prepared to admit. It seems to us that public policy and the justice of this case ooncur in leading to the conclusion that the [313] judgment ought to be affirmed. It is a rule that every presumption of law is in favor of the legality of a contract, and it is incumbent on a party alleging its illegality to show everything to render it so. 34 Miss. 181. So, when contracts of doubtful import are susceptible •of two interpretations, one legal and the other illegal, that construction will be adopted which will make the agreement legal. 4 How. 428 ; 30 Miss. 56. If these •rules as to the interpretation of contracts be applied to the notice accompanying the plea in the case at bar, it falls far short of invalidating the note sued on; but, on the contrary, shows the note to have been given for a bona fide and valuable consideration, though, in addition thereto, yet independent of it, as a part of the same general settlement, it was agreed by the plaintiff not to go voluntarily before the grand jury to prosecute Wilkins criminally. Again, a test, whether a demand connected with an illegal transaction can be enforced, is whether the plaintiff requires any aid from it to establish his case. 7 S. & M. 380. And in Bank of Newberry v. Stegall et al., 41 Miss. 142, in an action on a bond, referring to 2 Kent, 468, the rule is recognized, that where a part of the contract is legal and part illegal, if the two can be separated and stand independent and distinct, the legal may be good and the other bad; though if they are inseparable, if the legal and the illegal considerations be so intermixed, or the contract so entire that there can be no apportionment, the whole will be bad. In the case at bar, as we understand the record, the parties have thereby, in their pleadings and offer of proof, separated the illegal from the legal portion of the settlement, whereby the note stands confessed as embracing exclusively a legal and valid consideration, while the illegality consists only of the stipulation not to prosecute criminally, and is not represented in the note. We would not be understood as declaring any [314] rule in this class of cases, but as endeavoring only to determine the one at bar justly, as between the parties, according to the case they have made. Judgment affirmed.