Lindsay v. Smith

• Decision Date: 31 January 1878
• Citation: 24 Am.Rep. 463,78 N.C. 328
• Court: North Carolina Supreme Court
• Parties: ALEXANDER H. LINDSAY v. GEORGE J. SMITH and JOSEPH HOSKINS.

24 Am.Rep. 463

78 N.C. 328

ALEXANDER H. LINDSAY

v.GEORGE J. SMITH and JOSEPH HOSKINS.

Supreme Court of North Carolina.

January Term, 1878.

CIVIL ACTION for Breach of Covenant, tried at Fall Term, 1877, of GUILFORD Superior Court, before Buxton, J.

The case is sufficiently stated by Mr. Justice BYNUM in delivering the opinion of this Court. Upon the hearing in the Court below, His Honor sustained the demurrer of defendants and dismissed the action. Judgment for costs. Appeal by plaintiff.

Messrs. J. N. Staples and Merrimon, Fuller & Ashe, for plaintiff .

Mr. J. A. Gilmer, for defendants .

BYNUM, J.

This is an action for a breach of covenant. The defendants demur to the complaint, and the facts are these: On the 17th of February, 1874, an indictment was pending in the Superior Court of Guilford County, against the plaintiff Lindsay, for erecting and maintaining a public nuisance, by constructing a dam across a certain creek, and ponding back the water thereof, which thereby became stagnant, fetid and unwholesome, to the common nuisance of the citizens. That on said 17th of February, the covenant sued on was entered into, whereby the defendants covenanted under the penalty sued for, to cut, maintain and keep in repair, a certain ditch through the lands of the plaintiff; and that the plaintiff covenanted that when the work was done, he would pay the defendants fifty dollars; and it was further covenanted as follows: “And it is further agreed by all the parties hereto, in consideration of the premises, that the indictment now pending in the Superior Court of Guilford County, against the said Alexander H. Lindsay, found at February Term, 1873, shall be discontinued and not proceed, and the prosecution thereof stopped without cost to the said Lindsay.” * * * “And it is further agreed and understood by all the parties hereto, that this agreement is to be of no binding force on any of said parties whose names are signed hereto, until and unless the indictment herein before spoken of shall be discontinued without cost to the said Lindsay.” And this covenant is signed by the plaintiff and defendants.

Assuming this covenant to have been broken by the defendants, do these facts constitute a cause of action?

The general doctrine was admitted by the plaintiff's counsel, that no executory contract, the consideration of which is contra bonos mores or against the public policy or the laws of the State, can be enforced in a Court of Justice. It was further admitted that when the consideration of a contract is the compounding a felony, or the suppressing a prosecution of an offence strictly public in its character, such a contract cannot be enforced. But it was contended that this doctrine applied only to felonies, or at most to public misdemeanors, and that it had no application to offences, though indictable, yet private in their nature, as affecting an individual or a community, as in this case. In our State it has been decided directly otherwise. Vanover v. Thompson, 4 Jones 485. There, Thompson executed his promissory note to Vanover “to be valid and legal, provided the said Vanover shall not appear as a prosecutor or witness against James Thompson, with whom the said Vanover has a controversy; now if the said Vanover shall thus appear, this note to be null and void.” It does not appear what was the offence of Thompson, but a State's warrant had been issued against him by a Justice of the Peace, for some offence personal to Vanover, who failing to appear as a witness, the proceedings were dismissed. The plaintiff was non-suited, and it was then pronounced as a well settled principle that all contracts founded upon agreements to compound felonies, or to stifle prosecutions of any kind are void and cannot be enforced. And in Garner v. Qualls, 4 Jones 223, the consideration of the contract was the suppressing a prosecution for an alleged forgery. The obligee procured the bond to be executed by representing that a kinsman of the obligor had committed an indictable offence, and by agreeing not to prosecute. It was held that the bond was void, whether any such offence had been committed or not. This case is, therefore, a conclusive answer to the objection taken in our case, that the supposed indictment did not charge an indictable offence. In Garner's case, the obligor believed an offence had been committed, and the consideration of the note was to suppress inquiry about it. It is a matter of the gravest public concern, that all infractions of the criminal law should be detected and punished. A party cannot take care of his private interest by depriving the...