Kottwitz v. Representatives A. M.

• Decision Date: 01 January 1869
• Citation: 34 Tex. 689
• Parties: A. S. KOTTWITZ v. REPRESENTATIVES OF A. M. & C. C. ALEXANDER, DECEASED, AND ANOTHER.
• Court: Texas Supreme Court

34 Tex. 689

A. S. KOTTWITZ

v.REPRESENTATIVES OF A. M. & C. C. ALEXANDER, DECEASED, AND ANOTHER.

Supreme Court of Texas.

1869.

1. The general principle is fully recognized that if any part of the entire consideration for a promise, or any part of an entire promise, be illegal, whether by statute or at common law, the whole contract is void; but the illegality must enter into the contract and form part of it.

2. An intention of one of the parties to an ostensibly legal contract, to do an illegal act by means of the contract, will not invalidate the contract as against the other party; nor, it seems, would mere knowledge by the latter party, of the illegal purpose of the former, be enough to invalidate the contracts as to both. The intent sometimes becomes the pivotal point of civil as well as of criminal causes.

3. If it were conceded that the exportation of cotton from Texas to Mexico was illegal during the late civil war, it would not follow that debts contracted for teams and supplies used in such exportation could not be enforced. Nor would mere knowledge by the seller that such was the destined use of the teams and supplies, debar his recovery by suit. But otherwise, if he did any act in aid of the illegal purpose.

4. This court knows of no law which was violated by the exportation of cotton from Texas to Mexico during the late civil war. (There is no pretense of a violation of the blockade in this case.) The revenue laws of the United States were not necessarily violated or evaded by such exportation. Legislation was provided by the United States for the payment of the tax on cotton taken from the insurgent states to loyal ports. (See the opinion in extenso on these questions.)

5. Plaintiff alleged that in 1864 the defendants were engaged in carrying cotton out of Texas into Mexico, and became indebted to plaintiff for money loaned them to purchase teams, etc., for that purpose. By amended petition plaintiff alleged that defendants had a contract with the military board of the state of Texas, to bring in cotton cards with the proceeds of the cotton carried out. Defendants excepted to plaintiff's petitions, assigning various grounds of illegality in the loan. Held, that it was error to sustain the exceptions.

6. Suit was brought in G. county not only against an executrix who resided and was administering her testator's estate in that county, but also against another decedent's executors who resided in another county, and were administering their testator's estate in such other county. The two testators had been partners, and the suit was on a partnership liability. Held, that there was no misjoinder of parties defendant; and that in such a case the executors residing in the other county were not entitled to be sued in that, the county where they were administering their testator's estate.

7. Though the death of one partner ordinarily operates a dissolution of the partnership, yet it is competent for partners to stipulate that on the death of either of them, the survivor shall proceed to complete the partnership business; and liabilities incurred by the survivor, in conducting the partnership business after the death of his partner, are enforcible against the representatives of the latter, in like manner as though they had been incurred in his life-time.

8. Statutes are to be construed agreeably to the dictates of common sense, and conformably to the intention of the legislature.

9. Protest and notice of non-payment are not necessary to fix the liability of the drawer of a bill of exchange who knew, at the time he drew the bill, that he had no funds in the hands of the drawee.

APPEAL from Grayson. Tried below before the Hon. Hardin Hart.

Petition was filed July 4, 1866, by Kottwitz, alleging that in January, 1865, C. C. Alexander died, leaving a will, and that Roberts and others qualified as executors. That in July, 1865, A. M. Alexander died, and in October, 1865, Josephine B. Alexander was appointed executrix. That before and up to the death of C. C. Alexander he and said A. M. Alexander were partners under the firm name of A. M. & C. C. Alexander, at San Antonio, Texas.

That on the fifth of May, 1865, A. M. Alexander borrowed of plaintiff Kottwitz, at San Antonio, four thousand dollars in gold, and appropriated the same to the payment of freight bills and other indebtedness of the said firm of A. M. & C. C. Alexander, contracted and owing prior to the death of the said C. C. Alexander.

That on the fifth of June, 1865, A. M. Alexander executed a draft in the name of the firm of A. M. & C. C. Alexander, for $4,000, payable to Messrs. Russell, Morrow & Co., at the request of plaintiff Kottwitz. That afterwards, at the request and on the demand of Russell, Morrow & Co., plaintiff paid off and liquidated said draft with gold coin, whereby he became the holder and owner of said draft. That on twenty-ninth of June, 1865, said draft, drawn on L. C. Alexander, was by his wife protested, he being dead and his estate insolvent.

That on the twenty-ninth of June, 1866, plaintiff presented said draft to John U. Frailey, one of the executors of C. C. Alexander, by whom it was rejected; and on the thirtieth of June, 1866, presented the same to the defendant Roberts, another executor, and it was by him also rejected; that on the second of July, 1866, plaintiff presented the same to J. B. Alexander, executrix of A. M. Alexander, and she also rejected it.

Plaintiff asked for judgment for $4,000 and interest.

The original petition having been excepted to, the plaintiff, on twenty-seventh of November, 1866, filed an amended petition, alleging, in substance, that for a long time previous to the death of C. C. Alexander, he and A. M. Alexander had been partners, engaged in buying and selling cotton, and had acquired a large amount (ten thousand bales), which, to bring profitable sales, had to be taken to Mexico, and that, in carrying out the business, many teams and hands were hired, and large outlay in money required, and that the cotton was in danger of being stolen or otherwise lost; and that the money ($4,000 in gold) was obtained by A. M. Alexander of plaintiff, and used in defraying the expenses of the moving of the cotton from the interior of Texas via San Antonio to Mexico. That by the partnership contract the partnership as to the cotton enterprise continued to bind the firm and all parties concerned in said cotton matter. That the estate of A. M. Alexander is insolvent.

By the second amended petition, Knox is made a party defendant, and it is averred that plaintiff did not know of the Knox interest at the bringing of the suit. Appended to the second amended petition is a copy of the articles between the Alexanders and Knox, whereby it appears that Knox was admitted to one-third interest in the contract with the military board of Texas, for the exportation of cotton and the introduction of cotton cards.

To the petition and amendments many exceptions were filed, but those requiring attention were, first, that no diligence was shown by the holder of the draft to bind the drawers. Second, that the contract declared on was illegal, in aiding the violation of the United States revenue law for tax on cotton and in aiding the rebellion by the exportation of cotton for cards; which illegality, it is insisted by the defendants, is patent on the contract made part of the second amended petition.

The demurrer was sustained; plaintiff declined to amend, and judgment final was rendered for the defendants, from which this appeal was taken.

Bowers, Walker & Cullen, for the appellant. The appellant insists that the petition is sufficient in law.

I. The ownership of the draft is sufficiently averred. Merlin v. Manning, 2 Tex. 351;Heard v. Lockett, 20 Tex. 163;Guest v. Rhine, 16 Tex. 549.

II. The petition alleges want of funds in the hands of L. C. Alexander at the date of the draft, and also his death and insolvency. Want of funds in the hands of drawee excuses demand and protest as means of diligence to bind the drawers. Riker v. Freeman, Dallam, 585; Durrum v. Hendrick, 4 Tex. 499.

In this case the court held that the plaintiff, having alleged in his petition absence of effects in hands of drawee, has shown sufficient excuse for not having used the diligence prescribed by the statute, and say: “Having averred every fact which it was necessary for him to aver, to entitle him to recover, his petition is sufficient.” See, also, Cole v. Wintercost, 12 Tex. 120;Insall v. Robson, 16 Tex. 129.

The petition also alleges presentation to the widow of the drawee, and her refusal to accept, on the twenty-ninth of June, 1865. If, under the circumstances as alleged, demand was necessary, it has been alleged and shown, and under the statute (Pas. Dig. art. 321), notice was not necessary. The act of Mrs. L. C. Alexander is prima facie evidence of demand and protest. See Pridgen v. Cox, 13 Tex. 257.

The case of Smith v. Hubert, at the Galveston term, 1868, and Hoffman v. Gage, and other cases decided at the Galveston term, 1869, are not applicable to the case at bar.

Plaintiff here alleges facts excusing all acts of diligence whatever. The cases would be authority, releasing the drawers of the bill in the absence of allegations of facts excusing demand, etc.

III. Is the contract shown by plaintiff in his pleadings, illegal? It will be seen that this is an attempt to defeat the collection of a debt, neither illegal in its consideration, for the consideration is borrowed money--gold or silver coin; nor in the mode of payment, for it is payable in dollars. In order to bind the estate of C. C. Alexander, who was dead at the date of the bill, in the name of the partnership, the plaintiff shows the subject-matter of the business, its continuance after C. C. Alexander's death, the necessity for the funds, and its application to the use of the cotton enterprise. In revealing these facts, has illegality been shown; and any...