Brothers v. E. J. Biering & Co.
| Decision Date | 19 February 1886 |
| Docket Number | Case No. 2190 |
| Citation | 65 Tex. 506 |
| Parties | WEGNER BROS. v. E. J. BIERING & CO. |
| Court | Texas Supreme Court |
APPEAL from Galveston. Tried below before the Hon. Wm. H. Stewart.
This suit was brought by E. J. Biering & Co. against Wegner Bros. on a promissory note for $1,300. Wegner Bros. resisted the claim on the ground that there was no consideration that was good in law to support the contract in the note. Their defense was that the contract in the note had its origin in an unlawful undertaking on the part of Biering & Co. to make money out of Wegner Bros. and one William Pohl, by threatening a criminal prosecution, and agreeing to desist therefrom upon condition that they should be paid money by Wegner Bros. or Pohl for suppressing the prosecution. The cause was tried before a jury, the trial resulting in a verdict and judgment against the defendants for the amount of the note and interest. Defendants appealed. On the trial, Wegner Bros. asked the court for the following charge: “If the jury believe, from the evidence, that the note sued on was given to the plaintiffs in consideration for the surrender of a $1,000 note theretofore given to plaintiffs in consideration of a promise to desist from criminal prosecution of one William Pohl, for the crime of theft, and to prevent such prosecution for theft, and this was the only consideration for the $1,000 note, then the jury are instructed that the plaintiffs have no right to recover in this suit on the note sued on, so far as the sum of $1,000 is involved, and your verdict should be in favor of defendants as to $1,000 of the note sued on.”
The court refused this instruction, and, instead, charged the jury as follows: “I charge you that the suit in this case is not upon the two notes upon which Wegner Bros. were security, but is upon the $1,300 note executed by Wegner Bros.; and if you believe, from the evidence, that Pohl stole $1,000 worth of goods from Biering, and gave Biering a note for the same, with Wegner Bros. as security thereon; and that Pohl was further indebted to Biering in the further sum of $350 for balance of account, for which Pohl gave Biering a note for $350, with Wegner Bros. as security, and that Wegner Bros. took up the $1,000 note and the $350 note for the purpose of enabling themselves to sue thereon, and attached Pohl's stock of goods; and that in consideration of the surrender by Biering to Wegner Bros. of the two notes, they, Wegner Bros., executed and delivered to Biering the $1,300 note sued on in this cause, and then ran their attachments on Pohl's stock of goods, and got the money made on their attachments, although they may have realized only $725, they, Wegner Bros., would be liable to Biering for the $1,300 note, with interest thereon, at the rate of ten per cent. per annum, from August 15, 1883, and would require you to find for that gross amount of principal and interest in favor of the plaintiffs, E. J. Biering & Co., against the defendants, Wegner Bros.; for such a state of facts furnishes no defense against the $1,300 note sued on, and in evidence in this case.”
The giving of this charge and the refusal of the one asked by the defendants were assigned as error.
The syllabus states the material facts of the case.
McLemore & Campbell, for appellants, cited: Seeligson v. Lewis & Williams, Tex. Law Rev., vol. 5, No. 152, p. 774; Armstrong v. Toler, 11 Wheat. 261; 1 Parsons on Cont., 457.S. S. Hanscom, for appellees, on the questions discussed in the opinion, cited: DeLeon v. Trevino, 49 Tex. 89;Armstrong v. Toler, 11 Wheat. 261; R. S., art. 1317; Hunt v. Turner, 9 Tex. 389; Bly v. National Bank, 79 Penn. St. 453; Bibb v. Hitchcock, 49 Ala. 468.
The court below refused to submit to the jury any issue as to the consideration of the $1,000 note made by Pohl and indorsed by Wegner Bros. That note was, by all the proof, shown to be part of the consideration for the one in suit; the money it (the $1,000 note) promised was never paid, but was embraced in the promise sued upon, and is sought to be recovered in this suit.
That money, the plea alleges, was promised originally in consideration in part of the payees' agreement not to prosecute Pohl for theft, and, if the plea is true, the plaintiffs in this suit seek the reward of an unlawful contract. Enough testimony was introduced in support of the plea to require its submission to the jury, if it presented any defense to the suit.
The evidence showed that Wegner Bros. recovered a judgment against Pohl on the $1,000 note taken up by them, and that they realized upon that judgment, together with that upon the $350 note, taken up at the same time, the sum of $725. They thus reaped a benefit from the execution of the note in suit and its substitution for the two original notes. The proof also shows that this $350 note was a valid demand upon a lawful consideration, not only against the Wegner Bros., but against Wm. Pohl. Pohl was likewise a party to the $1,000 note, but, if the plea was true, the plaintiffs lost nothing in its surrender. Pohl is now as much bound morally as he was when the plaintiffs held the $1,000 note, and he was then, if the plea is true, as little legally bound as he is now. But, independent of this note, two new considerations entered into the execution of the note sued on--the acquisition by the Wegner Bros. of the two notes against Pohl, and the surrender by the plaintiffs of one valid note against Wegner Bros. and Pohl. These new considerations were still not the only considerations of the new note. A part of the consideration of the new note was the original consideration for the $1,000 note. The demand evidenced by that note is claimed to be illegal, and that demand has never been paid or extinguished, but is now a part of the demand evidenced by the note in suit.
It is obvious that there is ample valid consideration to support the promise sued on; yet, if, to the abundance of valid consideration, there has been added a leaven of what is illegal, the whole contract is tainted. Story on Cont., sec. 583; Bishop on Cont., sec. 471; Pollock on Cont., 318.
If a debtor, in payment of an account for $100, and in consideration that his creditor will refrain a duty or do an illegal act, executes his note only for the amount of the account, the note is, nevertheless, void. The good consideration has no virtue to cure the bad, but the bad corrupts the whole. Steuben Co. Bank v....
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